Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH. (a) Lenders agree, subject to the terms and conditions of the Agreement, to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion. (b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: (i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents; (ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit); (iii) any draft, certificate 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; (iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or (v) the occurrence of any Default or Event of Default. (c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 3 contracts
Samples: Loan Agreement (Bti Telecom Corp), Loan Agreement (Bti Telecom Corp), Loan Agreement (Bti Telecom Corp)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Initial Revolving Credit Lenders agreeset forth in this Section 2.04, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or an Alternate Currency for the account of the Borrower and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.04(b), and (2) to honor drafts under the Letters of Credit; and (B) the Initial Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower; provided that no L/C Issuer shall be obligated to issue any commercial Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension or after giving effect thereto, (w) the Total Revolving Outstandings with respect to the Initial Revolving Credit Facility would exceed the aggregate Initial Revolving Credit Commitments, (x) the Revolving Outstandings of any Lender under the Initial Revolving Credit Facility would exceed such Lender’s Initial Revolving Credit Commitment, (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit or (z) the Outstanding Amount of the L/C Obligations with respect to Letters of Credit issued by such L/C Issuer would exceed such L/C Issuer’s L/C Commitment (in each case, taking the Dollar Equivalent of all amounts in an Alternate Currency). Within the foregoing limits, and subject to the terms and conditions of hereof, the Agreement, Borrower’s ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether that have expired or not then due that have been drawn upon and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and reimbursed.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having an expiry date which is later than the Commitment Termination Date. It is understood force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the determination issuance of the bank letters of credit generally or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon such L/C Issuer with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and related guaranties which are which, in each case, such L/C Issuer in good fxxxx xxxxx material to it;
(B) subject to Section 2.04(b)(iii), the subject expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless all Initial Revolving Credit Lenders (other than any Initial Revolving Credit Lender that is a Defaulting Lender) have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all Initial Revolving Credit Lenders (other than any Initial Revolving Credit Lender that is a Defaulting Lender) have approved such expiry date; or
(D) the issuance of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretionwould violate any Laws or one or more policies of such L/C Issuer.
(biii) In the event that Agent or any other Lender An L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligation, if (A) such payment shall then be deemed automatically L/C Issuer would have no obligation at such time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof, or (B) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and does not subject accept the proposed amendment to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 3 contracts
Samples: Credit and Guaranty Agreement (Latham Group, Inc.), Credit and Guaranty Agreement (Latham Group, Inc.), Credit and Guaranty Agreement (Latham Group, Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Borrower (provided that any Letter of Credit may be for the benefit of any Subsidiary of the Borrower) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Lender’s Revolving Credit Commitment or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) An L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Lenders holding a majority of the AgreementRevolving Credit Commitments have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate any Laws binding upon such L/C Issuer;
(E) such Letter of Credit is denominated in a currency other than Dollars;
(F) any Revolving Credit Lender is at such time a Defaulting Lender, unless such L/C Issuer has received (as set forth in clause (a)(iv) below) Cash Collateral or similar security satisfactory to such L/C Issuer (in its sole discretion) from either the Borrower or such Defaulting Lender or such Defaulting Lender’s Pro Rata Share of the L/C Obligations has been reallocated pursuant to clause (a)(iv) below in respect of such Defaulting Lender’s obligation to fund under Section 2.03(c); or
(G) such Letter of Credit is in an initial amount less than $100,000.
(iii) An L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(iv) In the case where any Revolving Credit Lender is at any time a Defaulting Lender, the Borrower and such Defaulting Lender each agree, within one Business Day following notice by the Administrative Agent, to incur from cause to be deposited with the Administrative Agent for the benefit of the L/C Issuer, Cash Collateral in the full amount of such Defaulting Lender’s Pro Rata Share of the outstanding L/C Obligations; provided that, at the Borrower’s option, the Borrower may, by notice to the Administrative Agent, elect to reallocate all or any part of the Defaulting Lender’s Pro Rata Share of the L/C Obligations among all Revolving Credit Lenders that are not Defaulting Lenders but only to the extent (x) the total Revolving Credit Exposure of all Revolving Credit Lenders that are not Defaulting Lenders plus such Defaulting Lender’s Pro Rata Share of the L/C Obligations and any Swing Line Loans, in each case, except to the extent Cash Collateralized, does not exceed the aggregate Revolving Credit Commitments (excluding the Revolving Credit Commitment of any Defaulting Lender except to the extent of any outstanding Revolving Credit Loans of such Defaulting Lender) and (y) the conditions set forth in Section 4.02 are satisfied at such time (in which case (i) the Revolving Credit Commitments of all Defaulting Lenders shall be deemed to be zero (except to the extent Cash Collateral has been posted in respect of any portion of such Defaulting Lender’s L/C Obligations or participations in Swing Line Loans) for purposes of any determination of the Revolving Credit Lenders’ respective Pro Rata Shares of L/C Obligations (including for purposes of all fee calculations hereunder). The Borrower and/or such Defaulting Lender hereby grant to the Administrative Agent, for the benefit of such L/C Issuer, a security interest in any Cash Collateral and all proceeds of the foregoing with respect to such Defaulting Lender’s participations in Letters of Credit deposited hereunder. Such Cash Collateral shall be maintained in blocked deposit accounts at Bank of America and may be invested in Cash Equivalents reasonably acceptable to the Administrative Agent. If at any time the Administrative Agent determines that any funds held as Cash Collateral under this clause (a)(iv) are subject to any right or claim of any Person other than the Administrative Agent for the benefit of such L/C Issuer or that the total amount of such funds is less than such Defaulting Lender’s Pro Rata Share of all L/C Obligations that has not been reallocated as provided above, the Borrower and/or such Defaulting Lender will, promptly upon written demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (I) such Defaulting Lender’s Pro Rata Share of all L/C Obligations that have not been so reallocated over (II) the total amount of funds, if any, then held as Cash Collateral in respect thereof under this clause (a)(iv) that the Administrative Agent determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable Laws, to reimburse such L/C Issuer. If the Lender that triggers the Cash Collateral requirement under this clause (a)(iv) ceases to be a Defaulting Lender (as determined by such L/C Issuer in good faith), or if there are no L/C Obligations outstanding, any funds held as Cash Collateral pursuant to the foregoing provisions shall thereafter be returned to the Borrower or the Defaulting Lender, whichever provided the funds for the Cash Collateral, and the Pro Rata Share of the L/C Obligations of each Revolving Credit Lender shall thereafter take into account such Revolving Credit Lender’s Revolving Credit Commitment.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to an L/C Issuer (which request shall include an application in form and detail satisfactory with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by the relevant L/C Issuer and the Administrative Agent not less later than five 11:00 a.m. (5New York City time) at least two (2) Business Days prior to the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether date or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or acceptamendment, as the case may be; or, in each case, such later date and time as the relevant L/C Issuer may agree in a particular instance in its sole discretion. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the relevant L/C Issuer: (a) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (b) the amount thereof; (c) the expiry date thereof; (d) the name and address of the beneficiary thereof; (e) the documents to be presented by such beneficiary in case of any drawing thereunder; (f) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (g) such other matters as the relevant L/C Issuer may reasonably request. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the relevant L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the relevant L/C Issuer may reasonably request.
(ii) Promptly after receipt of any Letter of Credit contemplated Application, the relevant L/C Issuer will confirm with the Administrative Agent (by this paragraph (atelephone or in writing) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are that the subject Administrative Agent has received a copy of such Letter of Credit Obligations must be in form and substance satisfactory to AgentApplication from the Borrower and, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligationif not, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of L/C Issuer will provide the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Administrative Agent with respect to Letter a copy thereof. Upon receipt by the relevant L/C Issuer of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off confirmation from the Administrative Agent that the requested issuance or other defense or any other qualification or exception whatsoever and shall be made amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of this Agreement under all circumstances, including, without limitation, any Credit for the account of the following circumstances:Borrower or enter into the applicable amendment, as the case may be. Immediately upon the issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the relevant L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such Letter of Credit.
(iiii) If the Borrower so requests in any lack applicable Letter of validity or enforceability Credit Application, the relevant L/C Issuer shall agree to issue a Letter of this Agreement or Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the other Loan Documents;
relevant L/C Issuer to prevent any such extension at least once in each twelve month period (iicommencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-extension Notice Date”) in each such twelve month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the relevant L/C Issuer, the Borrower shall not be required to make a specific request to the relevant L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the existence relevant L/C Issuer to permit the extension of any claim, set-off, defense or other right which Borrower may have such Letter of Credit at any time against a beneficiary named to an expiry date not later than the Letter of Credit Expiration Date; provided that the relevant L/C Issuer shall (A) not be required to permit any such extension if the relevant L/C Issuer has determined that it would have no obligation at such time to issue such Letter of Credit in its extended form under the terms hereof (by reason of the provisions of Section 2.03(a)(ii) or otherwise), and (B) shall not permit any such extension if it has received notice (which may be by telephone or in writing) on or before the day that is five (5) Business Days before the Non-extension Notice Date from the Administrative Agent, any Revolving Credit Lender or the Borrower that one or more of the applicable conditions specified in Section 4.01 is not then satisfied.
(iv) Promptly after issuance of any Letter of Credit or any amendment to a Letter of Credit, any transferee the relevant L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of any such Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Defaultamendment.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 3 contracts
Samples: Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX During the Commitment Period, (i) the L/C HERETOIssuer, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject to in reliance upon the terms and conditions commitments of the AgreementLenders set forth herein, agrees (A) to incur from time to time upon written request issue Letters of Credit for the account of Borrower on any Business Day, (which request shall include an application in form and detail satisfactory B) to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter amend or renew Letters of Credit Obligations in respect of previously issued hereunder, and (C) to honor drafts under Letters of Credit; PROVIDED, HOWEVERand (ii) the Lenders severally agree to purchase from the L/C Issuer a participation interest in the Letters of Credit issued hereunder in an amount equal to such Lender’s Revolving Commitment Percentage thereof; provided, that (A) the aggregate principal amount of all Letter L/C Obligations shall not exceed an amount equal to FORTY MILLION DOLLARS ($40,000,000) (as such amount may be adjusted in accordance with the provisions hereof, the “L/C Committed Amount”), (B) with regard to the Lenders collectively, the aggregate principal amount of Credit Revolving Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (iix) the Aggregate Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of Committed Amount and (y) one year following the date of issuance thereof Availability Amount for such date, and (zC) the Commitment Termination Date. Lenders shall be under no obligation with regard to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other each Lender shall make any payment on or pursuant to any Letter of Credit Obligationindividually, such payment shall then be deemed automatically to constitute a Lender’s Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit Obligations shall not relieve any other Lender of exceed its obligation hereunder respective Revolving Committed Amount. Subject to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting)hereof, the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving Borrower’s ability to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit shall be fully revolving, and releases of all Letter accordingly the Borrower may obtain Letters of Credit Obligations in form to replace Letters of Credit that have expired or that have been drawn upon and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashreimbursed.
Appears in 3 contracts
Samples: Credit Agreement (Omega Healthcare Investors Inc), Credit Agreement (Omega Healthcare Investors Inc), Credit Agreement (Omega Healthcare Investors Inc)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agreeLender shall, subject to the terms and conditions hereinafter set forth, (i) incur Letter of Credit Obligations in respect of the Agreementissuance, on the Closing Date, of such Letters of Credit supporting obligations of Borrower or its Subsidiaries, as Borrower shall request by written notice to Lender executed by any duly authorized officer of Borrower, which is received by Lender not less than 2 Business Days prior to the Closing Date, and (ii) incur from time to time upon on written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Creditor its Subsidiaries, additional Letter of Credit Obligations in respect of Letters of CreditCredit supporting obligations of Borrower or its Subsidiaries; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Dateafter September 30, 1998. It is understood that the determination of the bank or other legally authorized Person (including Agent or LendersLender) which shall issue or accept, as the case may be, any Letter letter of Credit credit or bankers acceptance contemplated by this paragraph (aSection 2.2(a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agentmade by Lender, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit an Advance under SECTION 1.2(ASection 2.1(a) of the Agreement, regardless of hereof (whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure not Borrower is then permitted to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying request Advances at such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be actingtime), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that Lender shall incur any Letter of Credit Obligations pursuant hereto at the request or on behalf of Borrower hereunder, Borrower shall pay to Lender, as compensation to Lender for such Letter of Credit Obligation, whether or not then due all fees and payable, shall for any reason be outstanding charges paid by Lender on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters account of such Letter of Credit and releases Obligation to the issuer or like party. Fees payable in respect of all Letter of Credit Obligations in form and substance satisfactory shall be paid to AgentLender, in its sole discretionarrears, or (ii) pay to Agent on the first day of each month for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashpreceding month.
Appears in 2 contracts
Samples: Loan Agreement (Intek Diversified Corp), Loan Agreement (Intek Diversified Corp)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX During the Commitment Period, (i) the L/C HERETOIssuer, BORROWER SHALL HAVE THE RIGHT TO REQUESTin reliance upon the commitments of the Lenders set forth herein, AND AGENT AND LENDERS AGREE TO INCURagrees (A) to issue Letters of Credit for the account of Borrower on any Business Day, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(aB) to amend or renew Letters of Credit previously issued hereunder, and (C) to honor drafts under Letters of Credit; and (ii) the Lenders agreeseverally agree to purchase from the L/C Issuer a participation interest in the Letters of Credit issued hereunder in an amount equal to such Lender’s Revolving Commitment Percentage thereof; provided that (A) the aggregate principal amount of L/C Obligations shall not exceed the L/C Committed Amount, subject (B) with regard to the Lenders collectively, the aggregate principal amount of Revolving Obligations shall not exceed the Aggregate Revolving Committed Amount, and (C) with regard to each Lender individually, such Lender’s Revolving Commitment Percentage of Revolving Obligations shall not exceed its respective Revolving Committed Amount. Subject to the terms and conditions of hereof, the Agreement, Borrower’s ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than be fully revolving, and accordingly the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case Borrower may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all obtain Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute replace Letters of Credit that have expired or that have been drawn upon and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashreimbursed.
Appears in 2 contracts
Samples: Credit Agreement (Griffin-American Healthcare REIT IV, Inc.), Credit Agreement (Griffin-American Healthcare REIT IV, Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH (a) THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTHCOMMITMENT.
(ai) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Lenders agreeset forth in this SECTION 2.04, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of any one of the Borrowers, and to amend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of any one of the Borrowers; PROVIDED that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in, any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Outstanding Amount of all L/C Obligations and all Loans would exceed the Commitments, (y) the aggregate Outstanding Amount of the Loans of any Lender, PLUS such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, would exceed such Lender's Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions of hereof, the Agreement, Borrowers' ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether that have expired or not then due that have been drawn upon and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and reimbursed.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders The L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having an expiry date which is later than the Commitment Termination Date. It is understood force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the determination L/C Issuer refrain from, the issuance of the bank letters of credit generally or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon the L/C Issuer with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and related guaranties which are the subject L/C Issuer in good xxxxx xxxxx material to it;
(B) the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance, unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit Obligations must be would violate one or more policies of the L/C Issuer; or
(E) such Letter of Credit is in form and substance satisfactory to Agenta face amount less than $100,000, in its sole discretionthe case of a commercial Letter of Credit, or $500,000, in the case of any other type of Letter of Credit, or is to be denominated in a currency other than Dollars.
(biii) In the event that Agent or any other Lender The L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligation, if (A) the L/C Issuer would have no obligation at such payment shall then be deemed automatically time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof, or (B) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and does not subject accept the proposed amendment to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 2 contracts
Samples: Credit Agreement (Enbridge Energy Partners Lp), 364 Day Credit Agreement (Enbridge Energy Limited Partnership)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject Subject to and upon the terms and conditions of the Agreementherein set forth, to incur at any time and from time to time upon written request of Borrower (which request shall include an application in form after the Closing Date and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance L/C Facility Maturity Date, 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 Closing Date through the L/C Facility Maturity Date for the 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 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 each Letter of Credit Issuer in its reasonable discretion.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the L/C Obligations at such time, would exceed the Letter of Credit Commitment then in effect (or with respect to any Letter of Credit Issuer, exceed such Letter of Credit, Credit Issuer’s Letter of Credit Obligations Commitment; provided that if the Borrower determines that, in respect connection with any actual or anticipated L/C Credit Extension, less than the full amount of Letters the L/C Sublimit would be available to the Borrower as a result of Creditthe 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); PROVIDED, HOWEVER, that (ii) no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of all Letter the Lenders’ Revolving Credit Exposures at the time of Credit Obligations incurred by Lenders pursuant the issuance thereof to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Total Revolving Credit Borrowing Availability MINUS the Commitment then outstanding Revolving Credit Loansin effect; and, PROVIDED, further, that no such (iii) each Letter of Credit shall have an expiry expiration date which is occurring no later than the earlier of (y) one year following after the date of issuance thereof and (z) except as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the Commitment Termination L/C Facility Maturity Date. Lenders shall be under no obligation to incur , in each case, unless otherwise agreed upon by the Administrative Agent, such Letter of Credit Obligations Issuer and, unless such Letter of Credit has been Cash Collateralized or backstopped (in respect the case of a backstop only, on terms reasonably satisfactory to such Letter of Credit Issuer), the Revolving Credit Lenders; (iv) the Letter of Credit shall be denominated in Dollars or an Alternative Currency; (v) 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 (vi) no Letter of Credit shall be issued by any Letter of Credit having an expiry date which is later than Issuer after it has received a written notice from any Credit Party or the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Administrative Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Required Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether Lenders stating that a Default or Event of Default has occurred and is continuing until such time as such Letter of Credit Issuer shall have occurred 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 two Business Days’ prior written notice to the Administrative Agent and be continuing and notwithstanding Borrower's failure each Letter of Credit Issuer (which notice the Administrative Agent shall promptly transmit to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 each of the AgreementLenders), and each Lender the Borrower shall be obligated have the right, on any day, permanently to pay an amount calculated by applying such Lender's terminate or reduce the Letter of Credit Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under in whole or in part; provided that, after giving effect to such termination or reduction, the L/C Obligations shall not exceed the Letter of Credit Commitment (or with respect of to a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect theretoIssuer, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent L/C Obligations with respect to Letters of Credit issued by such Letter of Credit Obligations Issuer shall not exceed such Letter of Credit Issuer’s Letter of Credit Commitment).
(d) [Reserved].
(e) No Letter of Credit Issuer shall be irrevocable and not subject under any obligation to counterclaim, set-off or other defense or issue any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions Letter of this Agreement under all circumstances, including, without limitation, any of the following circumstancesCredit if:
(i) any lack order, judgment or decree of validity any Governmental Authority or enforceability arbitrator shall by its terms enjoin or restrain any Letter of this Agreement Credit Issuer from issuing such Letter of Credit, or any law applicable to such Letter of Credit Issuer or any request or directive (whether or not having the other Loan Documentsforce of law) from any Governmental Authority with jurisdiction over such Letter of Credit Issuer shall prohibit, or request that such Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which such Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the existence issuance of such Letter of Credit would violate one or more policies of such Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by any claimLetter of Credit Issuer, set-offsuch Letter of Credit is in an initial Stated Amount less than the Dollar Equivalent of $50,000, defense or other right which Borrower may have at any time against in the case of a beneficiary named in a commercial Letter of Credit, or the Dollar Equivalent of $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 any transferee other Alternative Currency;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vi) a default of any 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 to eliminate such Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender or such risk has been reallocated in accordance with Section 2.16.
(f) No Letter of Credit Issuer shall increase the Stated Amount of any Letter of Credit (or any Person for whom any if such transferee may be acting), the Agent, the Letter of Credit issuer, Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) No Letter of Credit Issuer shall be under any Lender, or other Person, whether in connection with this Agreement, obligation to amend any Letter of CreditCredit if (A) 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, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and B) the beneficiary named in any of such Letter of Credit does not accept the proposed amendment to such Letter of Credit);.
(iiih) any draft, certificate or any other document presented under the 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;
(iv) the surrender or impairment of any security for the performance or observance of any Issuer shall act on behalf of the terms Revolving Credit Lenders with respect to any Letters of any Credit issued by it and the documents associated therewith and such Letter of Credit Issuer shall have all of the Loan Documents; or
benefits and immunities (vA) provided to the occurrence of Administrative Agent in Section 13 with respect to any Default acts taken or Event of Default.
(c) In the event that omissions suffered by any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and releases Issuer Documents pertaining to such Letters of all Credit as fully as if the term “Administrative Agent” as used in Section 13 included any Letter of Credit Obligations in form Issuer with respect to such acts or omissions, and substance satisfactory (B) as additionally provided herein with respect to Agent, in its sole discretion, or (ii) pay to Agent for the benefit any Letter of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashCredit Issuer.
Appears in 2 contracts
Samples: Credit Agreement (Applovin Corp), Credit Agreement (Applovin Corp)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Lenders agreeset forth in this Section 2.03, from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b) below; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or any of its Subsidiaries; provided that (i) no L/C Issuer shall be obligated to make any L/C Credit Extension that would (i) result in the Outstanding Amount of the L/C Obligations with respect to Letters of Credit issued by it to exceed $20,000,000 or (ii) result in the Outstanding Amount of the L/C Obligations with respect to Letters of Credit issued by the L/C Issuers to exceed the Letter of Credit Sublimit; and provided further that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension (x) the Total Outstandings would exceed the Aggregate Commitment and (y) the aggregate Outstanding Amount of the Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans, would exceed such Lender’s Commitment. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementBorrower may, during the foregoing period, obtain Letters of Credit to incur replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) No L/C Issuer shall be under any obligation to issue any Letter of Credit and, in the case of clauses (B) and (C) below no L/C Issuer shall issue any Letter of Credit, if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from time issuing such Letter of Credit, or any Law applicable to time such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of Letters of Credit generally or such Letter of Credit in particular or shall impose upon written request such L/C Issuer with respect to such Letter of Borrower Credit any restriction, reserve or capital requirement (for which request shall include an application in form and detail satisfactory to Agentsuch L/C Issuer is not otherwise compensated hereunder) not less in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than five twelve months after the date of issuance or last renewal, unless the Required Lenders have approved such expiry date;
(5C) Business Days prior to the proposed expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit, Letter Credit would violate one or more policies of Credit Obligations in respect of Letters of Creditsuch L/C Issuer; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding or
(whether or not then due and payableE) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit is (1) in an initial amount less than $100,000, (2) is to be denominated in a currency other than Dollars, or (3) is to be issued for a purpose other than to support surety bonds (including appeal bonds), worker’s compensation requirements and other general corporate purposes.
(iii) No L/C Issuer shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of amend any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination if such L/C Issuer would have no obligation at such time to issue such Letter of the bank Credit in its amended form under any of Sections 2.03(a)(ii)(B), (C) or other legally authorized Person (including Agent E)(2) or Lenders(3).
(iv) which No L/C Issuer shall issue or accept, as the case may be, be under any obligation to amend any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are if the subject beneficiary of such Letter of Credit Obligations must be in form and substance satisfactory does not accept the proposed amendment to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 2 contracts
Samples: Credit Agreement (Noble Midstream Partners LP), Credit Agreement (Noble Midstream Partners LP)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject Subject to and upon the terms and conditions of the Agreementherein set forth, to incur (i) at any time and from time to time during the L/C Availability Period, each Letter of Credit Issuer agrees, in reliance upon written request the agreements of the Revolving Credit Lenders set forth in this Article III, to issue from time to time during the L/C Availability Period for the account of the Borrower (which request shall include an application in form or, so long as the Borrower is the primary obligor, for the account of any Subsidiary of the Borrower) letters of credit (the “Letters of Credit” and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such each, a “Letter of Credit, ”) in such form as may be approved by the Letter of Credit Obligations Issuer in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) its reasonable discretion and (ii) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder. Each letter of credit listed on Schedule 3.1A (each an “Existing Letter of Credit”) shall be deemed to constitute a Letter of Credit issued hereunder by the Letter of Credit Issuer identified on such schedule and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued, amended or renewed the Stated Amount of which would cause Availability to be less than $0, (ii) no Letter of Credit shall be issued, amended or renewed the Stated Amount of which, when added to the L/C Obligations at such time, would exceed the Letter of Credit Subfacility then in effect; (iii) no Letter of Credit shall be issued, amended or renewed the Stated Amount of which would cause (A) the aggregate amount of the Lenders’ Revolving Credit Borrowing Availability MINUS Exposures at the then outstanding time of the issuance, amendment or renewal thereof to exceed the Total Revolving Credit LoansCommitment then in effect or (B) the Revolving Credit Exposure of any Revolving Credit Lender at the time of the issuance, amendment or renewal thereof to exceed such Lender’s Revolving Credit Commitment; and, PROVIDED, further, that no such (iv) each Letter of Credit shall have an expiry expiration date which is occurring no later than the earlier of (yx) one year following after the date of issuance thereof (except as set forth in Section 3.2(d)) and (zy) the Commitment Termination L/C Maturity Date. Lenders shall be under no obligation to incur ; provided that, notwithstanding the foregoing, a Letter of Credit Obligations may have an expiration date (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 respect an amount equal to 102% of the Stated Amount of all Letters of Credit with expiration dates after the L/C Maturity Date; (v) each Letter of Credit shall be denominated 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; (vii) no Letter of Credit shall be issued by any Letter of Credit having an expiry date which is later than Issuer after it has received a written notice from any Loan Party or the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Administrative Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Required Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether Lenders stating that a Default or Event of Default shall have has occurred and be is continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest until such time as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit Issuer shall not relieve any other Lender have received a written notice of its obligation hereunder to make available to Agent an amount equivalent to (x) rescission of such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations notice from the party or parties originally delivering such notice or (y) the waiver of the Lenders to make payments to the Agent with respect to Letter such Default or Event of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made Default in accordance with the terms provisions of Section 13.1; and conditions (viii) no Letter of this Agreement Credit Issuer shall be under any obligation to issue, amend or renew any Letter of Credit if after giving effect thereto the L/C Obligations in respect of all circumstancesLetters of Credit issued by such Letter of Credit Issuer would exceed such Letter of Credit Issuer’s Letter of Credit Sublimit; provided that, including, without limitationsubject to the limitations set forth in the proviso to clauses (i) through (iii) above, any Letter of Credit Issuer in its sole discretion may issue Letters of Credit in excess of its Letter of Credit Sublimit.
(c) Upon at least two Business Days’ prior written notice to the Administrative Agent and the applicable Letter of Credit Issuer (which notice the Administrative Agent shall promptly transmit to each of the following circumstancesLenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Subfacility in whole or in part; provided that, (i) after giving effect to such termination or reduction, the L/C Obligations shall not exceed the Letter of Credit Subfacility and (ii) the Letter of Credit Sublimit of each L/C Issuer shall be reduced on a pro rata basis. Following any such termination or reduction, the Administrative Agent may in its discretion replace the existing Schedule 1.1A with an amended and restated schedule that reflects such termination or reduction.
(d) No Letter of Credit Issuer shall be under any obligation to issue any Letter of Credit if:
(i) any lack order, judgment or decree of validity any Governmental Authority or enforceability arbitrator shall by its terms enjoin or restrain such Letter of this Agreement Credit Issuer from issuing such Letter of Credit, or any law applicable to such Letter of Credit Issuer or any request or directive (whether or not having the other Loan Documentsforce of law) from any Governmental Authority with jurisdiction over such Letter of Credit Issuer shall prohibit, or request that such Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which such Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the existence issuance of any claimsuch Letter of Credit would violate one or more policies of such Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by such Letter of Credit Issuer, set-off, defense such Letter of Credit is in an initial Stated Amount less than $100,000 (or other right which Borrower such lower amount as may have at any time against a beneficiary named be agreed to by the Letter of Credit Issuer);
(iv) such Letter of Credit is denominated in a currency other than Dollars;
(v) such Letter of CreditCredit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vi) any Revolving Credit Lender is at that time a Defaulting Lender, any transferee unless such Letter of Credit Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such Letter of Credit Issuer (in its sole discretion) with the Borrower or such Revolving Credit Lender to eliminate such Letter of Credit Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such Letter of Credit Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(e) No Letter of Credit Issuer shall increase the Stated Amount of any Letter of Credit (or any Person for whom any if such transferee may be acting), the Agent, the Letter of Credit issuer, Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(f) No Letter of Credit Issuer shall be under any Lender, or other Person, whether in connection with this Agreement, obligation to amend any Letter of CreditCredit if (A) 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, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and B) the beneficiary named in any of such Letter of Credit does not accept the proposed amendment to such Letter of Credit);.
(iiig) any draft, certificate or any other document presented under the Each Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any Issuer shall act on behalf of the terms Revolving Credit Lenders with respect to any Letters of any of Credit issued by it and the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any documents associated therewith and each Letter of Credit Obligation, whether Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article XI with respect to any acts taken or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute omissions suffered by such Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and releases Issuer Documents pertaining to such Letters of all Credit as fully as if the term “Administrative Agent” as used in Article XI included such Letter of Credit Obligations in form Issuer with respect to such acts or omissions, and substance satisfactory (B) as additionally provided herein with respect to Agent, in its sole discretion, or (ii) pay to Agent for the benefit such Letter of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashCredit Issuer.
Appears in 2 contracts
Samples: Credit Agreement (Americold Realty Trust), Credit Agreement (Americold Realty Trust)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer, and for purposes of clause (2) each Existing L/C Issuer, agrees, in reliance upon the agreements of the Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Initial Funding Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Company or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Company or the applicable Designated Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company or the applicable Designated Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the ability of the AgreementCompany or the applicable Designated Borrower to obtain Letters of Credit shall be fully revolving, and accordingly the Company or the applicable Designated Borrower may, during the foregoing period, obtain Letters of Credit to incur replace Letters of Credit that have expired or that have been drawn upon and reimbursed. On the Initial Funding Date, all Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from time and after the Initial Funding Date, shall be subject to time and governed by the terms and conditions hereof. Within sixty (60) days following the Initial Funding Date, the Company will cause each Existing Letter of Credit issued by SunTrust Bank to be returned to SunTrust Bank with instructions from the applicable beneficiaries to cancel such Existing Letter of Credit. The Company agrees to promptly notify the Administrative Agent of the designation of any Lender or Affiliate of a Lender as an L/C Issuer.
(ii) No L/C Issuer shall issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon written request such L/C Issuer with respect to such Letter of Borrower Credit any restriction, reserve or capital requirement (for which request shall include an application in form and detail satisfactory to Agentsuch L/C Issuer is not otherwise compensated hereunder) not less than five in effect on the Initial Funding Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Initial Funding Date and which such L/C Issuer in good xxxxx xxxxx material to it (5it being understood that the applicable L/C Issuer shall promptly notify the Company and the Administrative Agent of any of the foregoing events or circumstances);
(B) Business Days prior to the proposed issuance of such Letter of CreditCredit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have is in an expiry initial stated amount less than $250,000;
(D) except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;
(E) such L/C Issuer does not as of the issuance date which of such requested Letter of Credit issue Letters of Credit in the requested currency;
(F) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(G) any Lender is later than at such time a Defaulting Lender, unless (x) such L/C Issuer (in its sole discretion) has entered into arrangements satisfactory to such L/C Issuer with the earlier Company or the applicable Designated Borrower or such Defaulting Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure with respect to such Defaulting Lender as to the Letter of Credit then proposed to be issued or (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation each L/C Issuer having actual or potential Fronting Exposure with respect to incur Letter issued Letters of Credit Obligations has entered into arrangements satisfactory to each such L/C Issuer as to Letters of Credit issued by it (in respect of its sole discretion) with the Company, the applicable Designated Borrower or such Defaulting Lender to eliminate such actual or potential risk.
(iv) Neither any L/C Issuer nor any Existing L/C Issuer shall amend any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank if such L/C Issuer or other legally authorized Person (including Agent or Lenders) which shall issue or acceptExisting L/C Issuer, as applicable, would not be permitted at such time to issue such Letter of Credit in its amended form under the case may be, terms hereof.
(v) Neither any L/C Issuer nor any Existing L/C Issuer shall be under any obligation to amend any Letter of Credit contemplated by this paragraph if (aA) shall be reasonably acceptable such L/C Issuer or Existing L/C Issuer, as applicable, would not have any obligation at such time to Agent, Lenders and Borrower. In addition, all Letters issue such Letter of Credit and related guaranties which are in its amended form under the subject terms hereof, or (B) the beneficiary of such Letter of Credit Obligations must be in form and substance satisfactory does not accept the proposed amendment to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(cvi) In Each L/C Issuer and each Existing L/C Issuer shall act on behalf of the event that Lenders with respect to any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit issued by it and releases the documents associated therewith, and each L/C Issuer and Existing L/C Issuer shall have all of all Letter the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer or Existing L/C Issuer, as applicable, in connection with Letters of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, issued by it or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available proposed to be drawn under issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the applicable Letter(sterm “Administrative Agent” as used in Article IX included each L/C Issuer and Existing L/C Issuer with respect to such acts or omissions, and (B) of Credit. Such cashas additionally provided herein with respect to each L/C Issuer and Existing L/C Issuer.
Appears in 2 contracts
Samples: Credit Agreement (Towers Watson Delaware Inc.), Credit Agreement (Towers Watson & Co.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject Subject to and upon the terms and conditions of the Agreementherein set forth, to incur at any time and from time to time upon written request of Borrower (which request shall include an application in form after the Closing Date and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance 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 Closing Date through the L/C Facility Maturity Date for the account of the Borrower (or, so long as the Borrower is the primary obligor and signatory to the Letter of Credit Request, for the account of any Restricted Subsidiary) letters of credit (the “Letters of Credit” and each, a “Letter of Credit”), which Letters of Credit shall not at any time exceed (i) the 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. On and after the Closing Date, each Existing Letter of Credit shall be deemed to be a Letter of Credit issued hereunder as of the Closing Date for all purposes under this Agreement and the Credit Documents and the fees and other provisions set forth in this Section 3 shall be applicable to each Existing Letter of Credit as of the Closing Date.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued if 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 (or, with respect to any Letter of Credit Issuer, unless otherwise agreed to by such Letter of CreditCredit Issuer, exceed such Letter of Credit Obligations in respect Issuer’s Letter of Letters Credit Commitment); (ii) no Letter of Credit; PROVIDED, HOWEVER, that Credit shall be issued the Stated Amount of which would cause the aggregate amount of all Letter the Lenders’ Revolving Credit Exposures at the time of Credit Obligations incurred by Lenders pursuant the issuance thereof to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Total Revolving Credit Borrowing Availability MINUS the Commitment then outstanding Revolving Credit Loansin effect; and, PROVIDED, further, that no such (iii) each Letter of Credit shall have an expiry expiration date which is (x) occurring no later than the earlier of (y) one year following after the date of issuance thereof (except as set forth in Section 3.2(d)) and (zy) that in no event occurs 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 the Borrower has agreed to Cash Collateralize or backstop (in the case of a backstop only, on terms reasonably satisfactory to such Letter of Credit Issuer) prior to the L/C Facility Maturity Date; (iv) the Letter of Credit shall be denominated in Dollars or any other currency approved by the Letter of Credit Issuer; (v) 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 (vi) 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 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 two Business Days’ prior written notice to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment Termination in whole or in part; provided that, after giving effect to such termination or reduction, the aggregate Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment (or, with respect to a Letter of Credit Issuer, unless otherwise agreed to by such Letter of Credit Issuer, the aggregate 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) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to such Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Letter of Credit Issuer shall prohibit, or request that such Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which such Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date. Lenders , or shall impose upon such Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which 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 such Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $10,000;
(iv) except as otherwise agreed by the Letter of Credit Issuer, such Letter of Credit is denominated in a currency other than Dollars;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vi) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrower has entered into arrangements reasonably satisfactory to the Letter of Credit Issuer to eliminate such Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender or such risk has been reallocated in accordance with Section 2.16.
(e) The Letter of Credit Issuer shall not 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.
(f) The Letter of Credit Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of amend any Letter of Credit having an expiry date which is later than if (A) the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable Issuer would have no obligation at such time to Agent, Lenders and Borrower. In addition, all Letters issue such Letter of Credit and related guaranties which are in its amended form under the subject terms hereof, or (B) the beneficiary of such Letter of Credit Obligations must be in form and substance satisfactory does not accept the proposed amendment to Agent, in its sole discretionsuch Letter of Credit.
(bg) In the event that Agent or any other Lender shall make any payment on or pursuant to any The Letter of Credit Obligation, such payment Issuer shall then be deemed automatically to constitute a act on behalf of the Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter any Letters of Credit Obligations shall be irrevocable issued by it and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever the documents associated therewith and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 12 with respect to any Lender, acts taken or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under omissions suffered by the Letter of Credit proving Issuer in connection with Letters of Credit issued by it or proposed to be forged, fraudulent, invalid or insufficient issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) Section 12 included the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit ObligationIssuer with respect to such acts or omissions, whether or not then due and payable, shall for any reason be outstanding on (B) as additionally provided herein with respect to the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashIssuer.
Appears in 2 contracts
Samples: Credit Agreement (Del Frisco's Restaurant Group, Inc.), Credit Agreement (Del Frisco's Restaurant Group, Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementBorrower may, during the foregoing period, obtain Letters of Credit to incur replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance, unless the Required Revolving Lenders have approved such expiry date;
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date; or
(C) such Letter of Credit is to be denominated in a currency other than Dollars.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from time issuing such Letter of Credit, or any Law applicable to time the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon written request the L/C Issuer with respect to such Letter of Borrower Credit any restriction, reserve or capital requirement (for which request shall include an application in form and detail satisfactory to Agentthe L/C Issuer is not otherwise compensated hereunder) not less than five in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(5B) Business Days prior to the proposed issuance of such Letter of CreditCredit would violate one or more policies of the L/C Issuer generally applicable to the issuance of letters of credit;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit is in an initial stated amount less than $100,000;
(D) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(E) a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such Lender to eliminate the L/C Issuer’s risk with respect to such Lender.
(iv) The L/C Issuer shall have an expiry date which is later than not amend any Letter of Credit if the earlier L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(yv) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders The L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of amend any Letter of Credit having an expiry date which is later than if (A) the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall L/C Issuer would have no obligation at such time to issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph in its amended form under the terms hereof, or (aB) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject beneficiary of such Letter of Credit Obligations must be in form and substance satisfactory does not accept the proposed amendment to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(cvi) In The L/C Issuer shall act on behalf of the event that Revolving Credit Lenders with respect to any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit issued by it and releases the documents associated therewith, and the L/C Issuer shall have all of all Letter the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, issued by it or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available proposed to be drawn under issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the applicable Letter(sterm “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) of Credit. Such cashas additionally provided herein with respect to the L/C Issuer.
Appears in 2 contracts
Samples: Credit Agreement (AMC Networks Inc.), Credit Agreement (AMC Networks Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Lenders agree, subject Subject to the terms and conditions set forth herein,
(A) each L/C Issuer agrees, in reliance upon (among other things) the agreements of the Agreement, to incur other Revolving Credit Lenders set forth in this Section 2.03,
(1) from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) on any Business Days Day during the period from the Closing Date until 30 days prior to the proposed issuance Initial Revolving Credit Maturity Date (or, if such day is not a Business Day, the next preceding Business Day), to issue Letters of Credit denominated in Dollars or an Alternative Currency for the account of each Borrower (but the Letter of Credit may contain a statement that it is being issued for the benefit of a Subsidiary), and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and
(2) to honor drawings under the Letters of Credit; and
(B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of each Borrower or any of its Wholly-Owned Restricted Subsidiaries on a pro rata basis in accordance with their respective Pro Rata Share of the Total Revolving Credit Commitments; provided that,
(I) on the Closing Date, the aggregate amount of any Existing Letters of Credit shall be reallocated among the Revolving Credit Lenders so that, after giving effect thereto, the Revolving Credit Lenders shall share ratably participations in such Letters of Credit in accordance with their Pro Rata Share of the Revolving Credit Commitment (after giving effect to any L/C Credit Extension and expiration of any Letter of Credit on the Closing Date);
(II) that any Letter of Credit issued on behalf of any Restricted Subsidiary (excluding, for the avoidance of doubt, the Existing Letters of Credit) shall be issued naming the Borrower as the account party on any such Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no but such Letter of Credit shall have an expiry date which may contain a statement that it is later than being issued for the earlier benefit of such Restricted Subsidiary;
(yIII) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders that no L/C Issuer shall be under no obligation obligated to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant L/C Credit Extension with respect to any Letter of Credit Obligation(including, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) for the avoidance of doubt, the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage L/C Issuer with respect to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter Existing Letters of Credit shall not relieve be required, to amend, extent or renew any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Existing Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving to be forgedif, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any as of the terms date of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of such L/C Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashExtension,
Appears in 2 contracts
Samples: Credit Agreement (APi Group Corp), Credit Agreement (APi Group Corp)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject to the terms and conditions of the Agreement, to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) Except as otherwise provided in Section 3.05(b), in the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect event of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance drawing under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein Borrower agrees to reimburse (either with the proceeds of a Revolving Loan as provided for in this Section 3.05(a) or any unrelated transactions with funds from other sources), in same day funds, the Issuing Lender on each date on which the Issuing Lender notifies the Borrower (including any underlying transaction between or if such notice is received by Borrower after 1:00 p.m. Charlotte, North Carolina time, on the next succeeding Business Day) of the date and the beneficiary named in amount of a draft paid under any such Letter of Credit);
Credit for the amount of (iiiA) such draft so paid and (B) any draft, certificate or any other document presented under amounts referred to in Section 3.03(c) incurred by the Letter of Credit proving to be forged, fraudulent, invalid or insufficient Issuing Lender in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Defaultconnection with such payment.
(cii) In Except as otherwise provided in Section 3.05(b), unless the event Borrower shall immediately notify the Issuing Lender that the Borrower intends to reimburse the Issuing Lender for any such drawing under any Letter of Credit Obligationfrom other sources or funds, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either be deemed to have timely given a Notice of Borrowing to the Administrative Agent requesting that the Lenders make a Revolving Loan bearing interest at the Base Rate plus the Applicable Base Rate Margin on such date in the amount of (iA) obtain substitute Letters such draft so paid and (B) any amounts referred to in Section 3.03(c) incurred by the Issuing Lender in connection with such payment, and the Lenders shall make a Revolving Loan bearing interest at the Base Rate plus the Applicable Base Rate Margin in such amount, and, notwithstanding anything in this Agreement to the contrary, the proceeds of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory which shall be applied to Agent, in its sole discretion, or (ii) pay to Agent reimburse the Issuing Lender for the benefit amount of the Lenders cash related drawing and costs and expenses. If the Borrower has elected to pay the amount of any such drawing from other sources or funds and shall fail to reimburse the Issuing Lender as provided in an this Section 3.05(a), the unreimbursed amount equal to one hundred five percent of such drawing shall bear interest at the rate which would be payable on any outstanding Base Rate Loans which were then overdue from the date such amounts become payable (105%whether at stated maturity, by acceleration or otherwise) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashuntil payment in full.
Appears in 2 contracts
Samples: Credit Agreement (South Jersey Gas Co/New), Revolving Credit Agreement (South Jersey Industries Inc)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject It is the intention of the parties that Purchaser will assume all obligations accruing after the Effective Time with respect to the terms Letters of Credit. Accordingly, Seller and conditions Purchaser agree to use their respective reasonable best efforts to obtain prior to the Closing Date the consent of the Agreement, beneficiary (if necessary) to incur from time the assumption of (and the resulting release of Seller from) the Letters of Credit and/or to time upon written request issue replacement letters of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than credit for those Letters of Credit that are standby Letters of Credit. At least five (5) Business Days prior to the proposed issuance Closing Date, Seller shall provide to Purchaser a list of all such Letters of Credit for which consent is required.
(b) Until such time as there are no Letters of Credit, Seller hereby grants to Purchaser, and Purchaser hereby agrees and commits to acquire, as of the Closing Date, from Seller a participation in the Letters of Credit equal to one hundred percent (100%) of the amount thereof.
(c) Seller agrees that, with respect to each request by a beneficiary for a draw under or payment of a Letter of Credit (a "REQUEST"), it will (1) promptly provide, by facsimile sent to Purchaser, copies of any and all documents submitted to support any Request; (2) wait twenty-four (24) hours, or such shorter time period as may be required under such Letter of Credit, Letter of Credit Obligations after sending the facsimile before acting on a Request; (3) act in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (accordance with law in deciding whether or not then due and payable) to honor the Request unless directed in writing by Purchaser to otherwise honor or dishonor a Request, which written direction from Purchaser shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank set forth Purchaser's specific reasons for honor or other legally authorized Person (including Agent or Lenders) which shall issue or acceptdishonor, as the case may be, provided, however, in the event Purchaser has directed Seller in writing to dishonor a Request that Seller reasonably deems should be honored, Purchaser's written direction just be accompanied by an indemnification from Purchaser holding Seller harmless from and against any and all Losses that Seller may incur arising from Purchaser's direction to dishonor (nothing in this Section 8.20(c) is intended to limit Purchaser's reimbursement obligation set forth in Section 8.20(d), and the indemnity herein shall not be subject to the time limitations or basket limitations set forth in Article V), and if such indemnification is not provided to Seller in writing in a timely fashion, Seller may honor such Request; (4) provide notice to Purchaser of the action taken on the Request and the amount of the Letter of Credit contemplated Disbursement that may become due pursuant to Section 8.20(d); and (5) after honoring a Request, send the documents submitted by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters the beneficiary in support of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretiona Request as directed by Purchaser.
(bd) In the event Seller notifies Purchaser that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder Disbursement has been made, then Purchaser agrees to make available pay to Agent Seller on the day so notified by Seller an amount equivalent equal to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuerDisbursement; provided, however, that if such notice was not given by Seller to Purchaser prior to 2:00 p.m. Pacific Time on such day, then such amount shall be paid by Purchaser not later than 10:00 a.m. on the next Business Day. Purchaser agrees to pay Seller any Lenderamounts due under this Section 8.20(d) by wire transfer of immediately available funds to an account previously designated by Seller.
(e) Purchaser also agrees to pay Seller (1) interest on any and all amounts unpaid by Purchaser when due under Section 8.20(d), or other Personfrom the date such amounts become due until payment in full, whether in connection with this Agreement, such interest being payable on demand and accruing at the Federal Funds Rate and (2) any Letter of Credit, the transactions contemplated herein or any unrelated transactions and all out-of-pocket expenses (including reasonable attorneys' fees) reasonably incurred by Seller in exercising or enforcing any underlying transaction between Borrower rights or performing any obligations under Section 8.20(d) and the beneficiary named in any such Letter of Credit8.20(e);.
(iiif) Seller shall promptly remit to Purchaser any draft, certificate or any other document presented under the amounts subsequently received by Seller from Letter of Credit proving to be forged, fraudulent, invalid or insufficient Customers in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations Disbursements, and agrees to use reasonable best effects to collect all amounts that may be owed to Seller from Letter of Credit Customers in form and substance satisfactory respect of all Letter of Credit Disbursements. Seller also agrees to Agent, in its sole discretion, or (ii) pay to Agent for Purchaser (1) interest on any and all amounts due to Purchaser under this Section 8.20(f), from the benefit of date Seller receives such amounts until payment in full, such interest being payable on demand and accruing at the Lenders cash Federal Funds Rate and (2) any and all out-of-pocket expenses (including reasonable attorneys' fees) reasonably incurred by Purchaser in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn exercising or enforcing any rights under the applicable Letter(s) of Credit. Such cashthis Section 8.20(f).
Appears in 2 contracts
Samples: Purchase and Assumption Agreement (Bay View Capital Corp), Purchase and Assumption Agreement (Bay View Capital Corp)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date to issue Letters of Credit at sight denominated in any Approved Currency for the account of the Borrower or any Restricted Subsidiary of the Borrower and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (1) to honor drafts under the Letters of Credit and (A) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Lender’s Revolving Credit Commitment, (y) the Outstanding Amount of the L/C Obligations in respect of Letters of Credit issued by such L/C Issuer would exceed such L/C Issuer’s L/C Commitment or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to be issued hereunder in the name of the Agreement, to incur from time to time upon written request Borrower for the benefit of the Borrower (which request shall include an application or Subsidiary of the Borrower in form and detail satisfactory to Agent) not less than five (5) Business Days whose name such Existing Letter of Credit is outstanding immediately prior to the proposed issuance of such Letter of Credit, Letter Closing Date and shall constitute Letters of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that subject to the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and terms hereof.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstancesif:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 2 contracts
Samples: Credit Agreement (Alight, Inc. /DE), Credit Agreement (Alight, Inc. / Delaware)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Lenders agreeset forth in this Section 2.04, (1) from time to time on any Business Day during the period from the Restatement Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all Competitive Loans shall not exceed such Xxxxxx’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) No L/C Issuer shall issue, amend or renew any Letter of Credit if, subject to Section 2.04(b)(iii), after giving effect thereto the expiry date of the Agreementrequested Letter of Credit would occur more than twelve months after the date of issuance or last extension or renewal, unless the Administrative Agent and the applicable L/C Issuer have approved such expiry date; provided that in no event will any Letter of Credit have an expiry date that is later than the first anniversary of the Revolving Maturity Date, subject to incur the requirements of Section 2.04(b)(v).
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing the Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon such L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Restatement Effective Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Restatement Effective Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of the Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, the Letter of Credit is in an initial stated amount less than $500,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Revolving Lender is at that time to time upon written request a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Borrower (which request shall include an application in form and detail Cash Collateral, satisfactory to Agentsuch L/C Issuer (in its sole discretion) not less than five with the Borrower or such Revolving Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (5after giving effect to Section 2.18(a)(iv)) Business Days prior with respect to the Defaulting Lender arising from either the Letter of Credit then proposed issuance to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) after giving effect to any L/C Credit Extension with respect to such Letter of Credit, Letter the L/C Obligations with respect to all Letters of Credit Obligations issued by such L/C Issuer would exceed such L/C Issuer’s L/C Commitment; provided that, subject to the limitations set forth in respect the proviso to the first sentence of Section 2.04(a)(i), any L/C Issuer in its sole discretion may issue Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount Credit in excess of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding its L/C Commitment.
(whether or not then due and payableiv) No L/C Issuer shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of amend any Letter of Credit having if such L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) No L/C Issuer shall be under an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, obligation to amend any Letter of Credit contemplated by this paragraph if (aA) shall be reasonably acceptable such L/C Issuer would have no obligation at such time to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, issue the Letter of Credit issuer, any Lenderin its amended form under the terms hereof, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and B) the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving does not accept the proposed amendment to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment Letter of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of DefaultCredit.
(cvi) In Each L/C Issuer shall act on behalf of the event that Revolving Lenders with respect to any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit issued by it and releases the documents associated therewith, and each L/C Issuer shall have all of all Letter the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, issued by it or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available proposed to be drawn under issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the applicable Letter(sterm “Administrative Agent” as used in Article IX included the L/C Issuers with respect to such acts or omissions, and (B) of Credit. Such cashas additionally provided herein with respect to the L/C Issuers.
Appears in 2 contracts
Samples: Credit Agreement (Empire State Realty OP, L.P.), Credit Agreement (Empire State Realty Trust, Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject Subject to and upon the terms and conditions herein set forth, the Borrower may request the Letter of the Agreement, to incur Credit Issuer at any time and from time to time upon written request of Borrower (which request shall include an application in form on or after the Restatement Effective Date and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance Maturity Date to issue, for the account of the Borrower and in support of commercial and/or trade obligations incurred in the ordinary course of business, insurance obligations, workers compensation, bonding obligations in respect of taxes, licenses and similar requirements, support of the Borrower's AFICA obligations and other obligations (including such other obligations as specified in the respective Letter of Credit Request and consented to by the Letter of Credit Issuer, such consent not to be unreasonably withheld, it being understood that the Letter of Credit Issuer will notify the Borrower of its withholding any such consent within 24 hours of its receipt of the respective Letter of Credit Request) of the Borrower, Xtra and/or other wholly-owned Subsidiaries of PXI, and subject to and upon the terms and conditions herein set forth the Letter of Credit Issuer agrees to issue from time to time, irrevocable letters of credit so requested by the Borrower in such form as may be approved by the Letter of Credit Issuer in its sole discretion (not to be unreasonably withheld) (each such letter of credit, together with each Existing Letter of Credit, a "Letter of Credit" and collectively, the "Letters of Credit").
(b) Notwithstanding the foregoing, (i) no Letter of Credit Obligations in respect shall be issued the Stated Amount of Letters of Credit; PROVIDEDwhich, HOWEVER, that when added to the L/C Outstandings at such time would exceed either (x) $30,000,000 or (y) when added to the aggregate principal amount of all Letter of Credit Obligations incurred Revolving Loans made by Lenders pursuant Non-Defaulting Banks and all Swingline Loans then outstanding, the Adjusted Total Revolving Commitment at such time (after giving effect to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed reductions to the lesser of (i) Twelve Million Dollars ($12,000,000) and Adjusted Total Revolving Commitment on such date); (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such each Letter of Credit shall have an expiry date occurring not later than one year after such Letter of Credit's date of issuance (subject to extension provisions acceptable to the Administrative Agent and the Letter of Credit Issuer, which acceptance is not to be unreasonably withheld, or except as may be otherwise agreed by the Administrative Agent and the Letter of Credit Issuer with respect to Letters of Credit issued in respect of the AFICA Bonds) and in no event occurring later than the earlier of third Business Day preceding the Maturity Date; (yiii) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but be denominated in U.S. dollars; (iv) no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject have a Stated Amount of less than $50,000 unless otherwise agreed to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, by the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions Issuer; and (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iiiv) any draft, certificate or any other document presented under the no Letter of Credit proving to shall be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashissued by the
Appears in 2 contracts
Samples: Credit Agreement (Pueblo Xtra International Inc), Credit Agreement (Pueblo Xtra International Inc)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitments.
(ai) Subject to the terms and conditions set forth herein, (A)(1) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders agreeset forth in this Section 2.03, (x) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Parent Borrower (provided that any Letter of Credit may be for the benefit of any Subsidiary of the Parent Borrower) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (y) to honor drawings under the Letters of Credit and (2) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that L/C Issuers shall not be obligated to make L/C Credit Extensions with respect to Letters of Credit, and Lenders shall not be obligated to participate in Letters of Credit if, as of the date of the applicable Letter of Credit, (x) the Revolving Credit Exposure of any Lender would exceed such Lender’s Revolving Credit Commitment or (y) the Outstanding Amount of all L/C Obligations would exceed the L/C Sublimit; provided, further, that no Letter of Credit shall be issued by any L/C Issuer the stated amount of which, when added to the Outstanding Amount of L/C Credit Extensions with respect to such L/C Issuer, would exceed the applicable Specified L/C Sublimit of such L/C Issuer then in effect. Each request by the Parent Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Parent Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Parent Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementParent Borrower may, during the foregoing period, obtain Letters of Credit to incur from time to time replace Letters of Credit that have expired or that have been drawn upon written request of Borrower and reimbursed.
(which request ii) An L/C Issuer shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless otherwise agreed by such L/C Issuer and the Administrative Agent in their sole discretion; or
(B) the expiry date of such requested Letter of Credit would occur after the applicable Letter of Credit Expiration Date, unless (1) each Appropriate Lender shall have approved such expiry date or (2) the Outstanding Amount of the L/C Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all such requested Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding has been Cash Collateralized.
(whether or not then due and payableiii) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having an expiry date which is later than the Commitment Termination Date. It is understood force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the determination issuance of the bank letters of credit generally or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon such L/C Issuer with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit and related guaranties any restriction, reserve or capital requirement (for which are such L/C Issuer is not otherwise compensated hereunder) not in effect on the subject Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) the issuance of such Letter of Credit Obligations must would violate one or more policies of such L/C Issuer applicable to letters of credit generally; or
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is to be denominated in form and substance satisfactory to Agent, in its sole discretiona currency other than Dollars.
(biv) In the event that Agent or any other Lender An L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligation, if (A) such payment shall then be deemed automatically L/C Issuer would have no obligation at such time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof, or (B) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and does not subject accept the proposed amendment to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or.
(v) Each L/C Issuer shall act on behalf of the occurrence of Appropriate Lenders with respect to any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit issued by it and releases the documents associated therewith, and each L/C Issuer shall have all of all Letter the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, issued by it or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available proposed to be drawn under issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the applicable Letter(s) of Credit. Such cashterm
Appears in 2 contracts
Samples: Credit Agreement (CC Media Holdings Inc), Credit Agreement (C C Media Holdings Inc)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Subfacility Expiration Date, to issue Letters of Credit denominated in Dollars for the account of any Borrower, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit in accordance with their terms; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of any Borrower; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in, any Letter of Credit if as of the date of such L/C Credit Extension, (1) the aggregate Revolving Credit Exposure would exceed the Aggregate Commitments, (2) the Revolving Credit Exposure of any Lender would exceed such Lender’s Commitment, (3) the L/C Exposure would exceed the L/C Sublimit or (4) the aggregate face amount of all Letters of Credit issued and then outstanding by such L/C Issuer would exceed such L/C Issuer’s Applicable LC Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementBorrowers may, during the foregoing period, obtain Letters of Credit to incur replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from time issuing such Letter of Credit, or any Law applicable to time such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon written request such L/C Issuer with respect to such Letter of Borrower Credit any restriction, reserve or capital requirement (for which request shall include an application in form and detail satisfactory to Agentsuch L/C Issuer is not otherwise compensated hereunder) not less in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than five twelve months after the date of issuance or last renewal, unless the Required Lenders have approved such expiry date;
(5C) Business Days prior to the proposed expiry date of such requested Letter of Credit would occur after the Letter of Credit Subfacility Expiration Date, unless all Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit, Letter Credit would violate one or more policies of Credit Obligations in respect of Letters of Creditsuch L/C Issuer; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding or
(whether or not then due and payableE) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later in a face amount less than $100,000, in the earlier case of a commercial Letter of Credit, or $500,000, in the case of any other type of Letter of Credit, or is to be denominated in a currency other than Dollars.
(yiii) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders No L/C Issuer shall be under no any obligation to incur Letter of Credit Obligations in respect of amend any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person if (including Agent or LendersA) which shall such L/C Issuer would have no obligation at such time to issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph in its amended form under the terms hereof, or (aB) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject beneficiary of such Letter of Credit Obligations must be in form and substance satisfactory does not accept the proposed amendment to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 2 contracts
Samples: Revolving Credit Agreement (L3harris Technologies, Inc. /De/), Revolving Credit Agreement (Harris Corp /De/)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from and including the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit at sight denominated in Dollars or an Alternative Currency for the account of the Borrowers (provided, that any Letter of Credit may be for the benefit of any Subsidiary of the Lead Borrower and may be issued for the joint and several account of the Lead Borrower and a Restricted Subsidiary to the extent otherwise permitted by this Agreement; provided further, to the extent any such Subsidiary is a Non-Loan Party, such Letter of Credit shall be deemed an Investment in such Subsidiary and shall only be issued so long as it is permitted hereunder) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit and (B) the Participating Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Revolving Credit Exposure of any Participating Revolving Credit Lender would exceed such Lender’s Participating Revolving Credit Commitment or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Lead Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementLead Borrower may, during the foregoing period, obtain Letters of Credit to incur from time replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to time upon written request be issued hereunder and shall constitute Letters of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior Credit subject to the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and terms hereof.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve (12) months (in the case of standby Letters of Credit) or 180 days (in the case of trade Letters of Credit) after the date of issuance or last renewal, unless (1) each Appropriate Lender has approved such expiry date or (2) the Outstanding Amount of L/C Obligations in respect of such requested Letter of Credit has been Cash Collateralized or back-stopped by a letter of credit reasonably satisfactory to such L/C Issuer;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (1) each Appropriate Lender has approved such expiry date or (2) the Outstanding Amount of L/C Obligations in respect of such requested Letter of Credit has been Cash Collateralized or back-stopped by a letter of credit reasonably satisfactory to such L/C Issuer and the Administrative Agent;
(D) such Letter of Credit would support obligations of the Borrowers or any of its Subsidiaries in respect of the Senior Notes any Junior Financing or any Equity Interest, or any other obligation of the Borrowers or any of its Subsidiaries not reasonably satisfactory to the Administrative Agent;
(E) the issuance of such Letter of Credit would violate any Laws binding upon such L/C Issuer;
(F) such Letter of Credit is in an initial Dollar Amount less than $100,000 (unless otherwise agreed by such L/C Issuer and the Administrative Agent);
(G) any Participating Revolving Credit Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements reasonably satisfactory to it and the Lead Borrower to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.19(a)(iv)) with respect to the participation in Letters of Credit by such Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the L/C Obligations; and
(H) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency.
(iii) An L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. Notwithstanding anything herein to the contrary, the expiry date of any Letter of Credit having an expiry denominated in a currency other than Dollars must be approved by the relevant L/C Issuer in its sole discretion even if it is less than twelve (12) months after the date which is later than the Commitment Termination Date. It is understood that the determination of the bank issuance or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, last renewal and any Auto-Extension Letter of Credit contemplated by this paragraph (a) denominated in a currency other than Dollars shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are issued only at the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its relevant L/C Issuer’s sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 2 contracts
Samples: Credit Agreement (Trinseo S.A.), Credit Agreement (Trinseo S.A.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrowers or their Subsidiaries in Dollars, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrowers or their Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the Revolving Credit Exposure shall not exceed such Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrowers for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(i) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of the Agreementrequested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (x) all the Revolving Credit Lenders and the L/C Issuer have approved such expiry date or (y) such Letter of Credit is cash collateralized or backstopped on terms and pursuant to incur from time to time upon written request of Borrower (which request shall include an application in form and detail arrangements reasonably satisfactory to Agentthe L/C Issuer.
(ii) The L/C Issuer shall not less than five be under any obligation to issue any Letter of Credit if:
(5A) Business Days prior any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the proposed issuance of such L/C Issuer from issuing the Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that or any Law applicable to the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at L/C Issuer or any one time outstanding request or directive (whether or not then due and payablehaving the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; andprohibit, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood or request that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting)L/C Issuer refrain from, the Agent, issuance of letters of credit generally or the Letter of Credit issuer, any Lender, in particular or other Person, whether in connection shall impose upon the L/C Issuer with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under respect to the Letter of Credit proving any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respectit;
(ivB) the surrender or impairment of any security for the performance or observance of any issuance of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether would violate one (1) or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit more policies of the Lenders cash in an amount equal L/C Issuer applicable to one hundred five percent (105%) letters of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashcredit generally;
Appears in 2 contracts
Samples: Credit Agreement (Ichor Holdings, Ltd.), Credit Agreement (Ichor Holdings, Ltd.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject Subject to and upon the terms and conditions of the Agreementherein set forth, to incur at any time and from time to time upon written request of Borrower (which request shall include an application in form after the Closing Date and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance L/C Facility Maturity Date, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, Bank of America, N.A. agrees to continue under this Agreement for the account of the Borrower, the Existing Letters of Credit issued by it until the scheduled expiration or earlier termination thereof, and each other Letter of Credit Issuer agrees to issue from time to time from the Closing Date through the L/C Facility Maturity Date for the account of the Borrower letters of credit (the letters of credit issued on and after the Closing Date pursuant to this Section 3, together with the Existing Letters of Credit, collectively the “Letters of Credit” and each, a “Letter of Credit”), which Letters of Credit shall not exceed any such Letter of Credit, Credit Issuer’s Letter of Credit Obligations Commitment and in respect the aggregate shall not exceed the L/C Sublimit, in such form as may be approved by the applicable Letter of Credit Issuer in its reasonable discretion. On the Closing Date, (i) the Existing Letters of CreditCredit shall be deemed to be Letters of Credit issued pursuant to this Section 3 for the account of the Borrower, (ii) the Dollar Equivalent of the face amount of such Existing Letters of Credit shall be included in the calculation of L/C Obligations and (iii) all liabilities of the Borrower with respect to such Existing Letters of Credit shall constitute Obligations.
(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 (or with respect to any Letter of Credit Issuer, exceed such Letter of Credit Issuer’s Letter of Credit Commitment); PROVIDED, HOWEVER, that (ii) no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of all 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 Obligations incurred by Lenders pursuant 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 this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of Multicurrency Sublimit then in effect; (iiv) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such each Letter of Credit shall have an expiry expiration date which is occurring no later than the earlier of (y) one year following after the date of issuance thereof (or such longer period of time as may be agreed by the applicable Letter of Credit Issuer) (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 Revolver 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; (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 a Letter of Credit to have a Letter of Credit issued in its favor; and (zvii) 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 Revolver 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 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 two Business Days’ prior written notice to the Revolver Administrative Agent and the Letter of Credit Issuer (which notice the Revolver Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment Termination 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 enjoin or restrain any such Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to such Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Letter of Credit Issuer shall prohibit, or request that such Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which such Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date. Lenders , or shall impose upon such Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such Letter of Credit Issuer in good fxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of such Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the applicable Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than the Dollar Equivalent of $50,000, in the case of a commercial Letter of Credit, or the Dollar Equivalent of $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 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 Borrower has entered into arrangements reasonably satisfactory to the applicable Letter of Credit Issuer to eliminate such Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender or such risk has been reallocated in accordance with Section 2.16.
(f) The Letter of Credit Issuer shall not increase the Stated Amount of any Letter of Credit if any 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 Letter of Credit Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of amend any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person if (including Agent or LendersA) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable Issuer would have no obligation at such time to Agent, Lenders and Borrower. In addition, all Letters issue such Letter of Credit and related guaranties which are in its amended form under the subject terms hereof, or (B) the beneficiary of such Letter of Credit Obligations must be in form and substance satisfactory does not accept the proposed amendment to Agent, in its sole discretionsuch Letter of Credit.
(bh) In the event that Agent or any other Lender shall make any payment on or pursuant to any The Letter of Credit Obligation, such payment Issuer shall then be deemed automatically to constitute a act on behalf of the Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter any Letters of Credit Obligations shall be irrevocable issued by it and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever the documents associated therewith and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, Issuer shall have all of the benefits and immunities (A) provided to the Revolver Administrative Agent in Section 13 with respect to any Lender, acts taken or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under omissions suffered by the Letter of Credit proving Issuer in connection with Letters of Credit issued by it or proposed to be forged, fraudulent, invalid or insufficient issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) Section 13 included the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit ObligationIssuer with respect to such acts or omissions, whether or not then due and payable, shall for any reason be outstanding on (B) as additionally provided herein with respect to the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashIssuer.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Focus Financial Partners Inc.), First Lien Credit Agreement (Focus Financial Partners Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX 3.1 Revolving L/C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTHCommitments.
(a) Lenders agree, subject Revolving L/C Commitments.
(i) Subject to the terms and conditions set forth herein, (A) each Revolving Facility Issuing Bank agrees, in reliance upon the agreements of the Agreement, to incur Revolving Lenders set forth in this Section 3.1 (1) (x) from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) on any Business Days Day during the period from the Closing Date until 10 days prior to the proposed issuance of such Letter of CreditRevolving Facility Maturity Date, Letter to issue Letters of Credit Obligations under the Revolving Facility for the account of the Borrower and (y) from time to time on any Business Day during the period from the Closing Date until 10 days prior to the Revolving Facility Maturity Date, to amend, renew or extend Letters of Credit previously issued by it, in respect accordance with paragraph (b) of this Section 3.1, and (2) to honor drawings under the Letters of Credit; PROVIDEDand (B) each of the Revolving Lenders severally agrees to participate in such Letters of Credit and any drawings thereunder; provided that no Revolving Facility Issuing Bank shall be obligated to make any Revolving L/C Credit Extension if, HOWEVERas of the date of such Revolving L/C Credit Extension, that (I) the aggregate amount Total Revolving Extensions of all Credit would exceed the Total Revolving Commitments, (II) the Revolving Extensions of Credit of any Revolving Lender would exceed such Lender’s Revolving Commitment or (III) the Revolving L/C Obligations with respect to Letters of Credit issued by such Revolving Facility Issuing Bank would exceed its Revolving L/C Commitment. Letters of Credit shall constitute utilization of the Revolving Commitments.
(ii) Each Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payableA) shall not exceed the lesser of be denominated in Dollars, (iB) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that expire no such Letter of Credit shall have an expiry date which is later than the earlier of (yx) one year following the second anniversary of its date of issuance thereof (or, in the case of any Auto-Renewal Letter of Credit, twelve months after the current expiration date) and (zy) the Commitment Termination DateL/C Expiration Date and (C) be issued subject to “Uniform Customs and Practice for Documentary Credits” (2007 Revision), International Chamber of Commerce, Publication No. Lenders 600, or “International Standby Practices 1998”, International Chamber of Commerce, Publication No. 590, as mutually agreed between the Borrower and the applicable Revolving Facility Issuing Bank.
(iii) No Revolving Facility Issuing Bank shall at any time be under no obligation obligated to incur Letter of Credit Obligations in respect of issue any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank if such issuance would conflict with, or other legally authorized Person (including Agent cause such Revolving Facility Issuing Bank or Lenders) which shall issue or accept, as the case may beany Revolving Lender to exceed any limits imposed by, any Letter applicable Requirement of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretionLaw.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 2 contracts
Samples: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or, with the consent of the Administrative Agent, its Subsidiaries, and to amend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Revolving Credit Facility, (y) the aggregate Outstanding Amount of the Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementBorrower may, during the foregoing period, obtain Letters of Credit to incur replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from time and after the Closing Date shall be subject to time and governed by the terms and conditions hereof.
(ii) No L/C Issuer shall issue any Letter of Credit if:
(A) the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless the Administrative Agent and the applicable L/C Issuer have approved such expiry date (it being understood that in the event the expiry date of any requested Letter of Credit would occur after the Letter of Credit Expiration Date, from and after the Letter of Credit Expiration Date, the Borrower shall immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations in respect of such Letters of Credit in accordance with Section 2.15).
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon written request such L/C Issuer with respect to such Letter of Borrower Credit any restriction, reserve or capital requirement (for which request shall include an application in form and detail satisfactory to Agentsuch L/C Issuer is not otherwise compensated hereunder) not less than five in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(5B) Business Days prior to the proposed issuance of such Letter of CreditCredit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have is in an expiry date which is later initial stated amount less than $50,000;
(D) such L/C Issuer does not as of the earlier of (y) one year following the issuance date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur such requested Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are in the subject of requested currency;
(E) such Letter of Credit Obligations must is to be denominated in form and substance a currency other than Dollars or an Alternative Currency; or
(F) any Lender is at such time a Defaulting Lender, unless such L/C Issuer has entered into arrangements satisfactory to Agentsuch L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure with respect to such Lender as to either the Letter of Credit then proposed to be issued or such Letter of Credit and all other L/C Obligations as to which such L/C Issuer has such actual or potential risk, as it may elect in its sole discretion.
(biv) In the event that Agent or any other Lender No L/C Issuer shall make any payment on or pursuant to amend any Letter of Credit Obligation, if such payment shall then L/C Issuer would not be deemed automatically permitted at such time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of in its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of amended form under the Lenders to make payments to the Agent with respect to Letter of Credit Obligations terms hereof.
(v) No L/C Issuer shall be irrevocable and not subject under any obligation to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of amend any Letter of Credit if (or any Person for whom any A) the such transferee may be acting), the Agent, the L/C Issuer would have no obligation at such time to issue such Letter of Credit issuer, any Lenderin its amended form under the terms hereof, or other Person, whether in connection with this Agreement, any (B) the beneficiary of such Letter of Credit, Credit does not accept the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any proposed amendment to such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(cvi) In Each L/C Issuer shall act on behalf of the event that Lenders with respect to any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit issued by it and releases the documents associated therewith, and each L/C Issuer shall have all of all Letter the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, issued by it or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available proposed to be drawn under issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the applicable Letter(sterm “Administrative Agent” as used in Article IX included each L/C Issuer with respect to such acts or omissions, and (B) of Credit. Such cashas additionally provided herein with respect to the L/C Issuers.
Appears in 2 contracts
Samples: Credit Agreement (Alexion Pharmaceuticals Inc), Credit Agreement (Alexion Pharmaceuticals Inc)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit, and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that (a) Lenders agreeafter giving effect to any L/C Credit Extension with respect to any Letter of Credit, the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, and (b) no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit and no Revolving Credit Lender shall be obligated to participate in any Letter of Credit if after giving effect to such L/C Credit Extension, (x) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Revolving Credit Lender’s Revolving Credit Commitment or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) An L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of the Agreementrequested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Required Revolving Credit Lenders have approved such expiry date; or
(B) subject to incur from time to time upon written request Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (x) all the Revolving Credit Lenders and such L/C Issuer have approved such expiry date or (y) the Borrower (which request shall include an application in form and detail has entered into arrangements reasonably satisfactory to Agentthe relevant L/C Issuer to Cash Collateralize the Outstanding Amount of such L/C Obligations or backstop such Letter of Credit on the later of (I) not less than five (5) Business Days prior to the proposed date of issuance of such Letter of Credit, Credit and (II) the 30th day prior to the Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Expiration Date.
(iii) An L/C Issuer shall not be under any obligation to issue any Letter of Credit Obligations incurred if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by Lenders pursuant its terms purport to this paragraph at enjoin or restrain such L/C Issuer from issuing the Letter of Credit, or any one time outstanding Law applicable to such L/C Issuer or any request or directive (whether or not then due and payablehaving the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall not exceed prohibit, or request that such L/C Issuer refrain from, the lesser issuance of (i) Twelve Million Dollars ($12,000,000) and (ii) letters of credit generally or the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit in particular or shall have an expiry date impose upon such L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is later than not otherwise compensated for hereunder) not in effect on the earlier of Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer is not otherwise compensated for hereunder and in good xxxxx xxxxx material to it;
(y) one year following the date of issuance thereof and (zB) the Commitment Termination Date. Lenders issuance of the Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, the Letter of Credit is in an initial stated amount less than $20,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Revolving Credit Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) An L/C Issuer shall not amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) An L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of amend any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person if (including Agent or LendersA) which shall such L/C Issuer would have no obligation at such time to issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lenderin its amended form under the terms hereof, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and B) the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving does not accept the proposed amendment to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment Letter of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of DefaultCredit.
(cvi) In An L/C Issuer shall act on behalf of the event that Revolving Credit Lenders with respect to any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit issued by it and releases the documents associated therewith, and such L/C Issuer shall have all of all Letter the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, issued by it or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available proposed to be drawn under issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the applicable Letter(sterm “Administrative Agent” as used in Article IX included such L/C Issuer with respect to such acts or omissions, and (B) of Credit. Such cashas additionally provided herein with respect to such L/C Issuer.
Appears in 2 contracts
Samples: Credit Agreement (Nexstar Broadcasting Group Inc), Credit Agreement (Mission Broadcasting Inc)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit, and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that (a) Lenders agreeafter giving effect to any L/C Credit Extension with respect to any Letter of Credit, the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, and (b) no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit and no Revolving Credit Lender shall be obligated to participate in any Letter of Credit if after giving effect to such L/C Credit Extension, (x) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Revolving Credit Lender’s Revolving Credit Commitment or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementBorrower may, during the foregoing period, obtain Letters of Credit to incur from time to time replace Letters of Credit that have expired or that have been drawn upon written request and reimbursed. All Letters of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days Credit outstanding under the Revolving Credit Commitments immediately prior to the proposed Second Incremental Amendment Closing Date shall be deemed to be Letters of Credit issued under the Tranche A Revolving Commitments.
(ii) An L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Required Revolving Credit Lenders have approved such expiry date; or
(B) subject to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (x) all the Revolving Credit Lenders and such L/C Issuer have approved such expiry date or (y) the Borrower has entered into arrangements reasonably satisfactory to the relevant L/C Issuer to Cash Collateralize the Outstanding Amount of such L/C Obligations or backstop such Letter of Credit on the later of (I) the date of issuance of such Letter of Credit, Credit and (II) the 30th day prior to the Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Expiration Date.
(iii) An L/C Issuer shall not be under any obligation to issue any Letter of Credit Obligations incurred if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by Lenders pursuant its terms purport to this paragraph at enjoin or restrain such L/C Issuer from issuing the Letter of Credit, or any one time outstanding Law applicable to such L/C Issuer or any request or directive (whether or not then due and payablehaving the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall not exceed prohibit, or request that such L/C Issuer refrain from, the lesser issuance of (i) Twelve Million Dollars ($12,000,000) and (ii) letters of credit generally or the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit in particular or shall have an expiry date impose upon such L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is later than not otherwise compensated for hereunder) not in effect on the earlier of Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer is not otherwise compensated for hereunder and in good xxxxx xxxxx material to it;
(y) one year following the date of issuance thereof and (zB) the Commitment Termination Date. Lenders issuance of the Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, the Letter of Credit is in an initial stated amount less than $20,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Revolving Credit Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) An L/C Issuer shall not amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) An L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of amend any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person if (including Agent or LendersA) which shall such L/C Issuer would have no obligation at such time to issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lenderin its amended form under the terms hereof, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and B) the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving does not accept the proposed amendment to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment Letter of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of DefaultCredit.
(cvi) In An L/C Issuer shall act on behalf of the event that Revolving Credit Lenders with respect to any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit issued by it and releases the documents associated therewith, and such L/C Issuer shall have all of all Letter the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, issued by it or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available proposed to be drawn under issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the applicable Letter(sterm “Administrative Agent” as used in Article IX included such L/C Issuer with respect to such acts or omissions, and (B) of Credit. Such cashas additionally provided herein with respect to such L/C Issuer.
Appears in 2 contracts
Samples: Credit Agreement (Mission Broadcasting Inc), Credit Agreement (Nexstar Broadcasting Group Inc)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject Subject to and upon the terms and conditions of the Agreementherein set forth, to incur at any time and from time to time upon written request of Borrower (which request shall include an application in form after the Closing Date and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance L/C Facility Maturity Date, 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 Closing Date through the L/C Facility Maturity Date for the 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 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 each Letter of Credit Issuer in its reasonable discretion.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the L/C Obligations at such time, would exceed the Letter of Credit Commitment then in effect (or with respect to any Letter of Credit Issuer, exceed such Letter of Credit, Credit Issuer’s Letter of Credit Obligations Commitment; provided that if the Borrower determines that, in respect connection with any actual or anticipated L/C Credit ExtensionBorrowing, less than the full amount of Letters the L/C Sublimit would be available to the Borrower as a result of Creditthe 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); PROVIDED, HOWEVER, that (ii) no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of all Letter the Lenders’ Revolving Credit Exposures at the time of Credit Obligations incurred by Lenders pursuant the issuance thereof to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Total Revolving Credit Borrowing Availability MINUS the Commitment then outstanding Revolving Credit Loansin effect; and, PROVIDED, further, that no such (iii) each Letter of Credit shall have an expiry expiration date which is occurring no later than the earlier of (y) one year following after the date of issuance thereof and (z) except as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the Commitment Termination L/C Facility Maturity Date. Lenders shall be under no obligation to incur , in each case, unless otherwise agreed upon by the Administrative Agent, such Letter of Credit Obligations Issuer and, unless such Letter of Credit has been Cash Collateralized or backstopped (in respect the case of a backstop only, on terms reasonably satisfactory to such Letter of Credit Issuer), the Revolving Credit Lenders; (iv) the Letter of Credit shall be denominated in Dollars or an Alternative Currency; (v) 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 (vi) no Letter of Credit shall be issued by any Letter of Credit having an expiry date which is later than Issuer after it has received a written notice from any Credit Party or the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Administrative Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Required Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether Lenders stating that a Default or Event of Default has occurred and is continuing until such time as such Letter of Credit Issuer shall have occurred 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 two Business Days’ prior written notice to the Administrative Agent and be continuing and notwithstanding Borrower's failure each Letter of Credit Issuer (which notice the Administrative Agent shall promptly transmit to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 each of the AgreementLenders), and each Lender the Borrower shall be obligated have the right, on any day, permanently to pay an amount calculated by applying such Lender's terminate or reduce the Letter of Credit Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under in whole or in part; provided that, after giving effect to such termination or reduction, the L/C Obligations shall not exceed the Letter of Credit Commitment (or with respect of to a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect theretoIssuer, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent L/C Obligations with respect to Letters of Credit issued by such Letter of Credit Obligations Issuer shall not exceed such Letter of Credit Issuer’s Letter of Credit Commitment).
(d) [Reserved].
(e) No Letter of Credit Issuer shall be irrevocable and not subject under any obligation to counterclaim, set-off or other defense or issue any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions Letter of this Agreement under all circumstances, including, without limitation, any of the following circumstancesCredit if:
(i) any lack order, judgment or decree of validity any Governmental Authority or enforceability arbitrator shall by its terms enjoin or restrain any Letter of this Agreement Credit Issuer from issuing such Letter of Credit, or any law applicable to such Letter of Credit Issuer or any request or directive (whether or not having the other Loan Documentsforce of law) from any Governmental Authority with jurisdiction over such Letter of Credit Issuer shall prohibit, or request that such Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which such Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the existence issuance of such Letter of Credit would violate one or more policies of such Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by any claimLetter of Credit Issuer, set-offsuch Letter of Credit is in an initial Stated Amount less than the Dollar Equivalent of $50,000, defense or other right which Borrower may have at any time against in the case of a beneficiary named in a commercial Letter of Credit, or the Dollar Equivalent of $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 any transferee other Alternative Currency;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vi) a default of any 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 to eliminate such Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender or such risk has been reallocated in accordance with Section 2.16.
(f) No Letter of Credit Issuer shall increase the Stated Amount of any Letter of Credit (or any Person for whom any if such transferee may be acting), the Agent, the Letter of Credit issuer, Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) No Letter of Credit Issuer shall be under any Lender, or other Person, whether in connection with this Agreement, obligation to amend any Letter of CreditCredit if (A) 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, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and B) the beneficiary named in any of such Letter of Credit does not accept the proposed amendment to such Letter of Credit);.
(iiih) any draft, certificate or any other document presented under the 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;
(iv) the surrender or impairment of any security for the performance or observance of any Issuer shall act on behalf of the terms Revolving Credit Lenders with respect to any Letters of any Credit issued by it and the documents associated therewith and such Letter of Credit Issuer shall have all of the Loan Documents; or
benefits and immunities (vA) provided to the occurrence of Administrative Agent in Section 13 with respect to any Default acts taken or Event of Default.
(c) In the event that omissions suffered by any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and releases Issuer Documents pertaining to such Letters of all Credit as fully as if the term “Administrative Agent” as used in Section 13 included any Letter of Credit Obligations in form Issuer with respect to such acts or omissions, and substance satisfactory (B) as additionally provided herein with respect to Agent, in its sole discretion, or (ii) pay to Agent for the benefit any Letter of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashCredit Issuer.
Appears in 2 contracts
Samples: Credit Agreement (Applovin Corp), Credit Agreement (Applovin Corp)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date to issue Letters of Credit at sight denominated in any Approved Currency for the account of the Lead Borrower or any Restricted Subsidiary of the Lead Borrower and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Lender’s Revolving Credit Commitment, (y) the Outstanding Amount of the L/C Obligations in respect of Letters of Credit issued by such L/C Issuer would exceed such L/C Issuer’s L/C Commitment or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Lead Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementLead Borrower may, during the foregoing period, obtain Letters of Credit to incur replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) An L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of issuing such Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant or any Law applicable to this paragraph at such L/C Issuer or any one time outstanding directive (whether or not then due and payablehaving the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall not exceed prohibit, or direct that such L/C Issuer refrain from, the lesser issuance of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no letters of credit generally or such Letter of Credit in particular or shall have an impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) subject to Section 2.03(b)(iii) and Section 2.03(a)(ii)(C), the expiry date which is of such requested Letter of Credit would occur later than the earlier of (yx) one year following twelve months after the date of issuance thereof and or last renewal or (zy) the Commitment Termination Date. Lenders shall be under no obligation fifth Business Day prior to incur Letter the Maturity Date of the Revolving Credit Facility, unless (1) each Appropriate Lender has approved of such expiration date or (2) the L/C Issuer thereof has approved of such expiration date and the Outstanding Amount of L/C Obligations in respect of any such requested Letter of Credit having an has been Cash Collateralized or backstopped pursuant to arrangements reasonably satisfactory to such L/C Issuer;
(C) the expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such requested Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters would occur after the Letter of Credit and related guaranties which are Expiration Date, unless all the subject Revolving Credit Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit Obligations must be would violate any Laws binding upon such L/C Issuer;
(E) the L/C Issuer does not as of the issuance date of the requested Letter of Credit issue Letters of Credit in form and substance the requested currency or type; or
(F) any Revolving Credit Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to Agentsuch L/C Issuer (in its sole discretion) with the Lead Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(biii) In the event that Agent or any other Lender An L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligationif (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such payment Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(iv) Each L/C Issuer shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) act on behalf of the Agreement, regardless Lenders with respect to any Letters of whether a Default or Event of Default shall have occurred Credit issued by it and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreementdocuments associated therewith, and each Lender L/C Issuer shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage have all of the benefits and immunities (A) provided to the aggregate amount of such payment. The failure of any Lender to make available to Administrative Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent Article 9 with respect to Letter any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit Obligations shall issued by it or proposed to be irrevocable issued by it and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit Issuance Request (and any other document, agreement or any Person for whom any instrument entered into by such transferee may be acting), L/C Issuer and the Agent, the Letter Lead Borrower or in favor of such L/C Issuer) pertaining to such Letters of Credit issueras fully as if the term “Administrative Agent” as used in Article 9 included such L/C Issuer with respect to such acts or omissions, any Lender, or other Person, whether in connection and (B) as additionally provided herein with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving respect to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; oreach L/C Issuer.
(v) The Lead Borrower may, at any time and from time to time, reduce the occurrence L/C Commitment of any Default or Event L/C Issuer with the consent of Default.
(c) In such L/C Issuer; provided that the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Lead Borrower shall either not reduce the L/C Commitment of any L/C Issuer if, after giving effect to such reduction, the conditions set forth in clause (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to above would not be drawn under the applicable Letter(s) of Credit. Such cashsatisfied.
Appears in 2 contracts
Samples: Credit Agreement (Bumble Inc.), Credit Agreement (Bumble Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject Subject to and upon the terms and conditions of the Agreementherein set forth, to incur at any time and from time to time upon written request of Borrower (which request shall include an application in form after the Closing Date and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance L/C Facility Maturity Date, 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 Closing Date through the L/C Facility Maturity Date for the 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 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 each Letter of Credit Issuer in its reasonable discretion.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the L/C Obligations at such time, would exceed the Letter of Credit Commitment then in effect (or with respect to any Letter of Credit Issuer, exceed such Letter of Credit, Credit Issuer’s Letter of Credit Obligations Commitment; provided that if the Borrower determines that, in respect connection with any actual or anticipated L/C Borrowing, less than the full amount of Letters the L/C Sublimit would be available to the Borrower as a result of Creditthe 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); PROVIDED, HOWEVER, that (ii) no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of all Letter the Lenders’ Revolving Credit Exposures at the time of Credit Obligations incurred by Lenders pursuant the issuance thereof to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Total Revolving Credit Borrowing Availability MINUS the Commitment then outstanding Revolving Credit Loansin effect; and, PROVIDED, further, that no such (iii) each Letter of Credit shall have an expiry expiration date which is occurring no later than the earlier of (y) one year following after the date of issuance thereof and (z) except as set forth in Section 3. 2(d)), provided that in no event shall such expiration date occur later than the Commitment Termination L/C Facility Maturity Date. Lenders shall be under no obligation to incur , in each case, unless otherwise agreed upon by the Administrative Agent, such Letter of Credit Obligations Issuer and, unless such Letter of Credit has been Cash Collateralized or backstopped (in respect the case of a backstop only, on terms reasonably satisfactory to such Letter of Credit Issuer), the Revolving Credit Lenders; (iv) the Letter of Credit shall be denominated in Dollars or an Alternative Currency; (v) 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 (vi) no Letter of Credit shall be issued by any Letter of Credit having an expiry date which is later than Issuer after it has received a written notice from any Credit Party or the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Administrative Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Required Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether Lenders stating that a Default or Event of Default has occurred and is continuing until such time as such Letter of Credit Issuer shall have occurred 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 two Business Days’ prior written notice to the Administrative Agent and be continuing and notwithstanding Borrower's failure each Letter of Credit Issuer (which notice the Administrative Agent shall promptly transmit to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 each of the AgreementLenders), and each Lender the Borrower shall be obligated have the right, on any day, permanently to pay an amount calculated by applying such Lender's terminate or reduce the Letter of Credit Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under in whole or in part; provided that, after giving effect to such termination or reduction, the L/C Obligations shall not exceed the Letter of Credit Commitment (or with respect of to a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect theretoIssuer, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent L/C Obligations with respect to Letters of Credit issued by such Letter of Credit Obligations Issuer shall not exceed such Letter of Credit Issuer’s Letter of Credit Commitment).
(d) [Reserved].
(e) No Letter of Credit Issuer shall be irrevocable and not subject under any obligation to counterclaim, set-off or other defense or issue any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions Letter of this Agreement under all circumstances, including, without limitation, any of the following circumstancesCredit if:
(i) any lack order, judgment or decree of validity any Governmental Authority or enforceability arbitrator shall by its terms enjoin or restrain any Letter of this Agreement Credit Issuer from issuing such Letter of Credit, or any law applicable to such Letter of Credit Issuer or any request or directive (whether or not having the other Loan Documentsforce of law) from any Governmental Authority with jurisdiction over such Letter of Credit Issuer shall prohibit, or request that such Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which such Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the existence issuance of such Letter of Credit would violate one or more policies of such Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by any claimLetter of Credit Issuer, set-offsuch Letter of Credit is in an initial Stated Amount less than the Dollar Equivalent of $50,000, defense or other right which Borrower may have at any time against in the case of a beneficiary named in a commercial Letter of Credit, or the Dollar Equivalent of $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 any transferee other Alternative Currency;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vi) a default of any 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 to eliminate such Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender or such risk has been reallocated in accordance with Section 2.16.
(f) No Letter of Credit Issuer shall increase the Stated Amount of any Letter of Credit (or any Person for whom any if such transferee may be acting), the Agent, the Letter of Credit issuer, Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) No Letter of Credit Issuer shall be under any Lender, or other Person, whether in connection with this Agreement, obligation to amend any Letter of CreditCredit if (A) 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, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and B) the beneficiary named in any of such Letter of Credit does not accept the proposed amendment to such Letter of Credit);.
(iiih) any draft, certificate or any other document presented under the 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;
(iv) the surrender or impairment of any security for the performance or observance of any Issuer shall act on behalf of the terms Revolving Credit Lenders with respect to any Letters of any Credit issued by it and the documents associated therewith and such Letter of Credit Issuer shall have all of the Loan Documents; or
benefits and immunities (vA) provided to the occurrence of Administrative Agent in Section 13 with respect to any Default acts taken or Event of Default.
(c) In the event that omissions suffered by any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and releases Issuer Documents pertaining to such Letters of all Credit as fully as if the term “Administrative Agent” as used in Section 13 included any Letter of Credit Obligations in form Issuer with respect to such acts or omissions, and substance satisfactory (B) as additionally provided herein with respect to Agent, in its sole discretion, or (ii) pay to Agent for the benefit any Letter of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashCredit Issuer.
Appears in 2 contracts
Samples: Credit Agreement (Applovin Corp), Credit Agreement (Applovin Corp)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date to issue Letters of Credit at sight denominated in any Approved Currency for the account of the Borrower or any Restricted Subsidiary of the Borrower and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Xxxxxx’s Revolving Credit Commitment, (y) the Outstanding Amount of the L/C Obligations in respect of Letters of Credit issued by such L/C Issuer would exceed such L/C Issuer’s L/C Commitment or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to be issued hereunder in the name of the Agreement, to incur from time to time upon written request Borrower for the benefit of the Borrower (which request shall include an application or Subsidiary of the Borrower in form and detail satisfactory to Agent) not less than five (5) Business Days whose name such Existing Letter of Credit is outstanding immediately prior to the proposed issuance of such Letter of Credit, Letter Closing Date and shall constitute Letters of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that subject to the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and terms hereof.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) subject to Section 2.03(b)(iii) and Section 2.03(a)(ii)(C), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless (1) each Appropriate Lender has approved of such expiration date or (2) the L/C Issuer thereof has approved of such expiration date and the Outstanding Amount of L/C Obligations in respect of any such requested Letter of Credit having an has been Cash Collateralized or backstopped pursuant to arrangements reasonably satisfactory to such L/C Issuer;
(C) the expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such requested Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters would occur after the Letter of Credit and related guaranties which are Expiration Date, unless all the subject Revolving Credit Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit Obligations must be would violate any Laws binding upon such L/C Issuer;
(E) the L/C Issuer does not as of the issuance date of the requested Letter of Credit issue Letters of Credit in form and substance the requested currency or type; or
(F) any Revolving Credit Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to Agentsuch L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(biii) In the event that Agent or any other Lender An L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligationif (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such payment Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(iv) Each L/C Issuer shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) act on behalf of the Agreement, regardless Lenders with respect to any Letters of whether a Default or Event of Default shall have occurred Credit issued by it and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreementdocuments associated therewith, and each Lender L/C Issuer shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage have all of the benefits and immunities (A) provided to the aggregate amount of such payment. The failure of any Lender to make available to Administrative Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent Article 9 with respect to Letter any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit Obligations shall issued by it or proposed to be irrevocable issued by it and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit Issuance Request (and any other document, agreement or any Person for whom any instrument entered into by such transferee may be acting), L/C Issuer and the Agent, the Letter Borrower or in favor of such L/C Issuer) pertaining to such Letters of Credit issueras fully as if the term “Administrative Agent” as used in Article 9 included such L/C Issuer with respect to such acts or omissions, any Lender, or other Person, whether in connection and (B) as additionally provided herein with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving respect to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; oreach L/C Issuer.
(v) The Borrower may, at any time and from time to time, reduce the occurrence L/C Commitment of any Default or Event L/C Issuer with the consent of Default.
(c) In such L/C Issuer; provided that the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either not reduce the L/C Commitment of any L/C Issuer if, after giving effect to such reduction, the conditions set forth in clause (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to above would not be drawn under the applicable Letter(s) of Credit. Such cashsatisfied.
Appears in 2 contracts
Samples: Credit Agreement (Alight, Inc. / Delaware), Credit Agreement (Alight, Inc. / Delaware)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX (i) Subject to the terms and conditions set forth herein, (A) the L/C HERETOIssuer agrees, BORROWER SHALL HAVE THE RIGHT TO REQUESTin reliance upon the agreements of the other Lenders set forth in this Section 2.03, AND AGENT AND LENDERS AGREE TO INCUR(1) from time to time on any Business Day during the period from the Assumption Date until the Letter of Credit Expiration Date, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
to issue Letters of Credit for the account of the Borrower and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (a2) to honor drafts under the Letters of Credit; and (B) the Lenders agreeseverally agree to participate in Letters of Credit issued for the account of the Borrower; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in, any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Outstanding Amount of all L/C Obligations and all Loans would exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Loans of any Lender plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations would exceed such Lender's Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions of hereof, the Agreement, Borrower's ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether that have expired or not then due that have been drawn upon and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and reimbursed.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders The L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having an expiry date which is later than the Commitment Termination Date. It is understood force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the determination L/C Issuer refrain from, the issuance of the bank letters of credit generally or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon the L/C Issuer with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and related guaranties which are the L/C Issuer in good xxxxx xxxxx material to it (for which the L/C Issuer is not otherwise compensated hereunder);
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Maturity Date, unless all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit Obligations must be would violate one or more policies of the L/C Issuer; or
(E) such Letter of Credit is in form and substance satisfactory to Agent, a face amount less than $100,000 or is denominated in its sole discretiona currency other than Dollars.
(biii) In the event that Agent or any other Lender The L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligation, if (A) the L/C Issuer would have no obligation at such payment shall then be deemed automatically time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof, or (B) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and does not subject accept the proposed amendment to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 2 contracts
Samples: Credit Agreement (FMC Technologies Inc), Credit Agreement (FMC Technologies Inc)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from and including the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit at sight denominated in Dollars or an Alternative Currency for the account of the Borrowers (provided, that any Letter of Credit may be for the benefit of any Subsidiary of the Lead Borrower and may be issued for the joint and several account of the Lead Borrower and a Restricted Subsidiary to the extent otherwise permitted by this Agreement; provided further, to the extent any such Subsidiary is a Non-Loan Party, such Letter of Credit shall be deemed an Investment in such Subsidiary and shall only be issued so long as it is permitted hereunder) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit and (B) the Participating Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Revolving Credit Exposure of any Participating Revolving Credit Lender would exceed such Lxxxxx’s Participating Revolving Credit Commitment or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Lead Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementLead Borrower may, during the foregoing period, obtain Letters of Credit to incur from time replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to time upon written request be issued hereunder and shall constitute Letters of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior Credit subject to the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and terms hereof.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve (12) months (in the case of standby Letters of Credit) or 180 days (in the case of trade Letters of Credit) after the date of issuance or last renewal, unless (1) each Appropriate Lender has approved such expiry date or (2) the Outstanding Amount of L/C Obligations in respect of such requested Letter of Credit has been Cash Collateralized or back-stopped by a letter of credit reasonably satisfactory to such L/C Issuer;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (1) each Appropriate Lender has approved such expiry date or (2) the Outstanding Amount of L/C Obligations in respect of such requested Letter of Credit has been Cash Collateralized or back-stopped by a letter of credit reasonably satisfactory to such L/C Issuer and the Administrative Agent;
(D) such Letter of Credit would support obligations of the Borrowers or any of its Subsidiaries in respect of the Senior Notes any Junior Financing or any Equity Interest, or any other obligation of the Borrowers or any of its Subsidiaries not reasonably satisfactory to the Administrative Agent;
(E) the issuance of such Letter of Credit would violate any Laws binding upon such L/C Issuer;
(F) such Letter of Credit is in an initial Dollar Amount less than $100,000 (unless otherwise agreed by such L/C Issuer and the Administrative Agent);
(G) any Participating Revolving Credit Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements reasonably satisfactory to it and the Lead Borrower to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.19(a)(iv)) with respect to the participation in Letters of Credit by such Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the L/C Obligations; and
(H) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency.
(iii) An L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. Notwithstanding anything herein to the contrary, the expiry date of any Letter of Credit having an expiry denominated in a currency other than Dollars must be approved by the relevant L/C Issuer in its sole discretion even if it is less than twelve (12) months after the date which is later than the Commitment Termination Date. It is understood that the determination of the bank issuance or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, last renewal and any Auto-Extension Letter of Credit contemplated by this paragraph (a) denominated in a currency other than Dollars shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are issued only at the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its relevant L/C Issuer’s sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Samples: Credit Agreement (Trinseo PLC)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) On the terms and subject to the conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders agreeset forth in this Section 2.02, (1) from time to time on any Business Day during the period from the Original Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit in Dollars for the account of the Borrower in support of the obligations of the Borrower or any other Loan Party, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower in support of the obligations of the Borrower or any other Loan Party; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in, any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Effective Amount of all Revolving Loans and L/C Obligations would exceed the lesser of (1) the Total Revolving Loan Commitment at such time and (2) the Adjusted Borrowing Base Availability at such time, (y) the aggregate Effective Amount of the Revolving Loans of any Lender, plus such Lender’s Revolving Proportionate Share of the Effective Amount of all L/C Obligations would exceed such Lender’ Revolving Loan Commitment, or (z) the Effective Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Each Letter of Credit shall be in a form acceptable to the L/C Issuer. Within the foregoing limits, and subject to the terms and conditions of hereof, the Agreement, Borrower’s ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether that have expired or not then due that have been drawn upon and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and reimbursed.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders The L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Requirement of Law applicable to the L/C Issuer or any request or directive (whether or not having an expiry date which is later than the Commitment Termination Date. It is understood force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the determination L/C Issuer refrain from, the issuance of the bank letters of credit generally or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon the L/C Issuer with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and related guaranties which are the L/C Issuer reasonably and in good xxxxx xxxxx material to it;
(B) subject to Section 2.02(b)(iii), (1) in the case of any Standby Letter of Credit, the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal or (2) in the case of any Commercial Letter of Credit, the expiry date of such requested Letter of Credit would occur more than 180 days after the date of issuance or last renewal, in either case unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless the L/C Issuer and all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent would violate one or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) more policies of the Agreement, regardless of whether a Default L/C Issuer or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any the applicable Letter of the following circumstances:Credit Application; or
(iE) any lack such Letter of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named Credit is in a face amount less than $25,000, in the case of a Commercial Letter of Credit, or $100,000, in the case of any transferee other type of Letter of Credit, or denominated in a currency other than Dollars.
(iii) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (or any Person for whom any A) the L/C Issuer would have no obligation at such transferee may be acting), the Agent, the time to issue such Letter of Credit issuer, any Lenderin its amended form under the terms hereof, or other Person, whether in connection with this Agreement, any (B) the beneficiary of such Letter of Credit, Credit does not accept the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any proposed amendment to such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject Subject to the terms and conditions of the this Agreement, Foothill agrees to incur from time to time upon written request provide a $5,000,000 facility for the issuance of letters of credit for the account of Borrower (which request each, an "L/C") or to issue guarantees of payment (each such guaranty, an "L/C Guaranty") with respect to letters of credit issued by an issuing bank for the account of Borrower. Foothill shall include an application in form and detail satisfactory have no obligation to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, issue a Letter of Credit Obligations in respect if any of Letters the following would result:
(i) Letter of CreditCredit Usage would exceed the 20% of the amount of Annualized Service Revenues less Deferred Revenue; PROVIDED, HOWEVER, that or ----
(ii) the aggregate amount of all Letter undrawn or unreimbursed Letters of Credit would exceed $5,000,000; or
(iii) the outstanding Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not would exceed the lesser Maximum Amount. Borrower expressly understands and agrees that Foothill shall have no obligation to arrange for the issuance by issuing banks of (i) Twelve Million Dollars ($12,000,000) the letters of credit that are to be the subject of L/C Guarantees. Borrower and (ii) Foothill acknowledge and agree that certain of the Revolving Credit Borrowing Availability MINUS letters of credit that are to be the then subject of L/C Guarantees may be outstanding Revolving Credit Loans; and, PROVIDED, further, that no such on the Closing Date. Each Letter of Credit shall have an expiry date which is no later than the earlier of (y) one year following 60 days prior to the date of issuance thereof on which this Agreement is scheduled to terminate under Section 3.4 (without regard to any ----------- potential renewal term) and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all such Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must shall be in form and substance satisfactory acceptable to Agent, Foothill in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be . If Foothill is obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent advance funds under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, Borrower immediately shall reimburse such amount to Foothill and, in the absence of such reimbursement, the amount so advanced immediately and automatically shall be deemed to be an Advance hereunder and, thereafter, shall bear interest at the rate then applicable to Advances under Section 2.6. ------------
(b) Borrower hereby agrees to indemnify, save, defend, and hold Foothill harmless from any transferee loss, cost, expense, or liability, including payments made by Foothill, expenses, and reasonable attorneys fees incurred by Foothill arising out of or in connection with any Letter of Credit. Borrower agrees to be bound by the issuing bank's regulations and interpretations of any Letters of Credit (guarantied by Foothill and opened to or for Borrower's account or by Foothill's interpretations of any Person L/C issued by Foothill to or for whom any such transferee Borrower's account, even though this interpretation may be acting)different from Borrower's own, the Agentand Borrower understands and agrees that Foothill shall not be liable for any error, negligence, or mistake, whether of omission or commission, in following Borrower's instructions or those contained in the Letter of Credit issueror any modifications, any Lenderamendments, or other Personsupplements thereto. Borrower understands that the L/C Guarantees may require Foothill to indemnify the issuing bank for certain costs or liabilities arising out of claims by Borrower against such issuing bank. Borrower hereby agrees to indemnify, whether in connection save, defend, and hold Foothill harmless with this Agreementrespect to any loss, any Letter of Creditcost, the transactions contemplated herein or any unrelated transactions expense (including reasonable attorneys fees), or liability incurred by Foothill under any underlying transaction between Borrower and the beneficiary named in L/C Guaranty as a result of Foothill's indemnification of any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Defaultissuing bank.
(c) In Borrower hereby authorizes and directs any bank that issues a letter of credit guaranteed by Foothill to deliver to Foothill all instruments, documents, and other writings and property received by the event that any Letter issuing bank pursuant to such letter of Credit Obligationcredit, whether and to accept and rely upon Foothill's instructions and agreements with respect to all matters arising in connection with such letter of credit and the related application. Borrower may or may not then due be the "applicant" or "account party" with respect to such letter of credit.
(d) Any and payableall charges, commissions, fees, and costs incurred by Foothill relating to the letters of credit guaranteed by Foothill shall be considered Foothill Expenses for any reason purposes of this Agreement and immediately shall be outstanding on the Commitment Termination Date, reimbursable by Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashFoothill.
Appears in 1 contract
Samples: Loan and Security Agreement (Concurrent Computer Corp/De)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Lenders agreeset forth in this Section 2.02, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and its Subsidiaries; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in, any Letter of Credit if as of the date of such L/C Credit Extension, (w) the Outstanding Amount of all L/C Obligations and all Loans would exceed the Aggregate Commitments, (x) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans, would exceed such Lender’s Commitment, (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit, or (z) the Outstanding Amount of the L/C Obligations under Letters of Credit issued by such L/C Issuer would exceed the L/C Issuer Commitment of such L/C Issuer. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementBorrower may, during the foregoing period, obtain Letters of Credit to incur from time to time replace Letters of Credit that have expired or that have been drawn upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter reimbursed. All Existing Letters of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDEDif any, HOWEVERshall be deemed to have been issued pursuant hereto, that and from and after the aggregate amount of all Letter of Credit Obligations incurred Closing Date shall be subject to and governed by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due the terms and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and conditions hereof.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having an expiry date which is later than the Commitment Termination Date. It is understood force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the determination L/C Issuer refrain from, the issuance of the bank letters of credit generally or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon the L/C Issuer with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and related guaranties which are the subject L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit Obligations must would violate one or more policies of the L/C Issuer;
(C) such Letter of Credit is in a face amount less than $100,000, or is to be used for a purpose other than as described in form and substance Section 6.12 or is denominated in a currency other than Dollars; or
(D) any Lender is at that time a Defaulting Lender, unless the L/C Issuer is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to Agent, in its sole discretionthe L/C Issuer.
(biii) In the event that Agent or any other Lender The L/C Issuer shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of not issue a Letter of Credit shall not relieve any other Lender if:
(A) subject to Section 2.02(b)(iii), the expiry date of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to requested Letter of Credit Obligations shall be irrevocable and not subject to counterclaimwould occur more than twelve months after the date of issuance or last renewal, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with unless the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:Required Lenders have approved such expiry date; or
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(iiB) the existence expiry date of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any such requested Letter of Credit would occur
(or any Person for whom any such transferee may be acting), the Agent, 1) after the Letter of Credit issuerExpiration Date, unless the L/C Issuer and all Lenders (other than any Non-Extending Lender(s) who shall no longer be a party(ies) to this Agreement after such expiry date) have approved such expiry date, or
(2) after any Stated Maturity Date applicable to any Non-Extending Lender, or other Person, whether in connection with this Agreement, any Letter unless (x) the amount of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any Credit together with all other document presented under L/C Obligations and Loans outstanding on the date of issuance of such Letter of Credit proving is equal to be forgedor less than the Aggregate Commitments of all Lenders who shall remain parties to this Agreement subsequent to such Stated Maturity Date, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respectand (y) the Borrower obtains prior approval from the L/C Issuer and all Lenders who shall remain parties to this Agreement subsequent to such Stated Maturity Date;
(iv) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the surrender or impairment L/C Issuer would have no obligation at such time to issue such Letter of any security for the performance or observance of any of Credit in its amended form under the terms hereof, or (B) the beneficiary of any such Letter of Credit does not accept the Loan Documents; orproposed amendment to such Letter of Credit.
(v) The L/C Issuer shall act on behalf of the occurrence of Lenders with respect to any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit issued by it and releases the documents associated therewith, and the L/C Issuer shall have all of all Letter the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, issued by it or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available proposed to be drawn under issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the applicable Letter(sterm “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) of Credit. Such cashas additionally provided herein with respect to the L/C Issuer.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO(1) The Issuing Lender agrees, BORROWER SHALL HAVE THE RIGHT TO REQUESTin reliance upon the terms and subject to the conditions of this Agreement (and in accordance with the standard terms and conditions represented by any agreement (including the Issuing Lender’s standard Letter of Credit Application Form) that may be entered into between the Borrower and the Issuing Lender from time to time, AND AGENT AND LENDERS AGREE TO INCURincluding the payment of administrative fees and costs), THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTHto issue Letters of Credit for the account of the Borrower from time to time on any Business Day prior to the eighth-to-last day of the Term of the Revolving Facility, which Letter of Credit shall expire on the earlier of (a) up to one year from issuance, or (b) 7 days prior to the expiry of the Term of the Revolving Facility. The issuance of any such Letter of Credit shall require two (2) Business Days’ prior notice to the Administrative Agent and the Issuing Lender, which notice shall be accompanied by the Issuing Lender’s standard Letter of Credit Application Form, duly completed and executed by the Borrower. The Borrower shall pay, in respect of any such Letter of Credit, fees equal to the aggregate of: (i) for the Revolving Lenders, the Applicable Margin multiplied by the Face Amount thereof (and taking into account the number of days until the expiry date thereof), and (ii) for the Issuing Lender, 1/8% per annum of the Face Amount thereof (taking into account the number of days until the expiry date thereof), payable quarterly in arrears on the last Business Day of each Fiscal Quarter, or on such other date as the Administrative Agent and the Issuing Lender may determine from time to time.
(2) For greater certainty, the Issuing Lender shall not be obliged to issue any Letter of Credit if as a result (a) the Accommodations Outstanding under the Revolving Facility would exceed the Revolving Commitment, (b) the Issuing Lender’s (after taking into account the allocation of risk pursuant to Section 5.01(4)) or any other Lender’s Commitment under the Revolving Facility would be exceeded, (c) the Aggregate Face Amount of Letters of Credit Outstanding would exceed C$50,000,000, (d) a Law or an order, judgment or decree of a Governmental Entity would be breached or would prohibit such issuance, (e) the Issuing Lender or other Revolving Lenders agreewould incur increased costs of the nature referred to in Section 12.06(4) in respect of which they would not be indemnified by the Borrower, or (f) the policies of the Issuing Lender would be breached.
(3) The Issuing Lender’s Letter of Credit Application Form and any form pertaining to amendments of any Letter of Credit (collectively, the “Letter of Credit Application Form”) shall require, inter alia, (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof (a “Beneficiary”); (E) the documents to be presented by such Beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such Beneficiary in case of any drawing thereunder; and (G) such other matters as the Issuing Lender may require.
(4) Promptly after receipt of any Letter of Credit Application Form, the Issuing Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application Form from the Borrower and, if not, the Issuing Lender will provide the Administrative Agent with a copy thereof. Upon receipt by the Issuing Lender of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions of hereof, the AgreementIssuing Lender shall, to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to on the proposed issuance of such Letter of Creditrequested date, issue a Letter of Credit Obligations for the account of the Borrower in respect of Letters of Credit; PROVIDEDaccordance with the Issuing Lender’s usual and customary business practices, HOWEVERand immediately thereupon, that each Revolving Lender shall be deemed to, and irrevocably and unconditionally agrees to, purchase from the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no Issuing Lender a risk participation in such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) its ratable share of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashsame.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Lenders agree, subject Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the AgreementRevolving Credit Lenders set forth in this Section 2.04, to incur (1) from time to time upon written request on any Business Day during the period from the Closing Date until the Letter of Borrower Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies applicable to such L/C Issuer (which request provided that in no event shall include an application there be, at any time, more than four (4) L/C Issuers that issue Letters of Credit in form Alternative Currencies) for the account of the Company or its Subsidiaries, and detail satisfactory to Agentamend or extend Letters of Credit previously issued by it, in accordance with subsection (b) not less than five below, and (52) Business Days prior to honor drawings under the proposed issuance Letters of such Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that (v) the aggregate amount of all Letter the outstanding Letters of Credit issued by the applicable L/C Issuer shall not exceed its L/C Commitment, (w) the aggregate L/C Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser Letter of Credit Sublimit, (i) Twelve Million Dollars ($12,000,000) and (iix) the Revolving Credit Borrowing Availability MINUS the then outstanding Exposure of any Revolving Credit Loans; andLender shall not exceed its Revolving Credit Commitment, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof aggregate Revolving Credit Exposure with respect to Credit Extensions denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a total Revolving Credit Advance under SECTION 1.2(A) of Exposures shall not exceed the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such total Revolving Credit Loan Commitments. Each request by the Company for the issuance or payment by Agent under or in respect amendment of a Letter of Credit shall not relieve any other Lender of its obligation hereunder be deemed to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;a
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, No L/C Issuer shall issue any Letter of Credit, if the transactions contemplated herein expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date.
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if: (A) any order, judgment or decree of any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit);
, or any Law applicable to such L/C Issuer or any request or directive (iiiwhether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good xxxxx xxxxx material to it; (B) the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer; (C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit; (D) except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency; (E) such L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency; (F) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or (G) any draftRevolving Credit Lender is at that time a Defaulting Lender, certificate unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the Company or any other document presented under such Revolving Credit Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.20(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit proving then proposed to be forged, fraudulent, invalid issued or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Samples: Credit Agreement (Idex Corp /De/)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject Subject to and upon the terms and conditions of the Agreementherein set forth, to incur at any time and from time to time upon written request of Borrower (which request shall include an application in form after the Closing Date and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance L/C Facility Maturity Date, 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 Closing Date through the L/C Facility Maturity Date upon the request of, and for the direct or indirect benefit of, Holdings, any Borrower and the Restricted Subsidiaries, a letter of credit or bank guarantee or letters of credit or bank guarantees in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion, which Letters of Credit, unless otherwise agreed by the applicable Letter of Credit Issuer, (i) shall not exceed such Letter of Credit Issuer’s Letter of Credit Commitment and (ii) in the aggregate (but excluding any 2019 Existing Letter of Credit) shall not exceed the aggregate Letter of Credit Commitments of all Letter of Credit Issuers; provided that a Borrower shall be (or, in the case of any Designated Letter of Credit, the U.S. Borrower shall be deemed to be) a co-applicant and shall be jointly and severally liable with respect to, each Letter of Credit issued for the account of Holdings or a Restricted Subsidiary; provided, however, no Foreign Borrower shall be liable for a Letter of Credit unless such Foreign Borrower is the co-applicant of such Letter of Credit, Credit or such Letter of Credit Obligations is issued for the account of such Foreign Borrower or any of its Subsidiaries.
(b) Notwithstanding the foregoing, (i) unless otherwise agreed by the applicable Letter of Credit Issuer, no Letter of Credit shall be issued the Stated Amount of which, (A) when added to the Letters of Credit Outstanding at such time, would exceed the aggregate Letter of Credit Commitments of all Letter of Credit Issuers then in effect or (B) with respect to any Letter of Credit Issuer, when added to the Letters of Credit Outstanding at such time in respect of Letters of CreditCredit issued by such Letter of Credit Issuer, would exceed such Letter of Credit Issuer’s Letter of Credit Commitment then in effect; PROVIDED, HOWEVER, that (ii) no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of all 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 Obligations incurred by Lenders pursuant to this paragraph shall be issued the Stated Amount of which would at any one time outstanding prior to the satisfaction of the 2019 Increased Availability Condition cause the aggregate amount of the 2019 Revolving Credit Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed $450,000,000[reserved]; (whether iv) no Letter of Credit in Euro or not then due and payable) the Alternative Currency shall not be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the lesser of Multicurrency Sublimit then in effect; (iv) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such each Letter of Credit shall have an expiry expiration date which is occurring no later than the earlier of (y) one year following after the date of issuance thereof and (z) except as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the Commitment Termination L/C Facility Maturity Date. Lenders shall be under no obligation to incur , in each case, unless otherwise agreed upon by the Letter of Credit Obligations in respect of any Issuer; (vi) each Letter of Credit having shall be denominated in Dollars, Euro or an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person Alternative Currency; (including Agent or Lendersvii) which shall issue or accept, as the case may be, any no Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters issued if it would be illegal under any applicable law for the beneficiary of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any have a Letter of Credit Obligation, such payment issued in its favor; and (viii) no Letter of Credit shall then be deemed automatically to constitute 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 Advance under SECTION 1.2(A) of the Agreement, regardless of whether Lenders stating that a Default or Event of Default shall have has occurred and be is continuing and notwithstanding Borrower's failure to satisfy until such time as the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit Issuer shall not relieve any other Lender have received a written notice of its obligation hereunder to make available to Agent an amount equivalent to (x) rescission of such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations notice from the party or parties originally delivering such notice or (y) the waiver of the Lenders to make payments to the Agent with respect to Letter such Default or Event of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made Default in accordance with the terms and conditions provisions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of DefaultSection 13.1.
(c) In Upon at least two Business Days’ prior written notice to the event that any Administrative Agent and the Letter of Credit ObligationIssuer (which the Administrative Agent shall promptly notify the applicable Lenders), whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, each Borrower shall either have the right, on any day, permanently to terminate or reduce the aggregate Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, (i) obtain substitute the Letters of Credit and releases Outstanding shall not exceed the aggregate Letter of Credit Commitment of all Letter of Credit Obligations in form Issuers and substance satisfactory to Agent, in its sole discretion, or (ii) pay with respect to Agent for any Letter of Credit Issuer, the benefit Letters of Credit Outstanding in respect of Letters of Credit issued by such Letter of Credit Issuer shall not exceed such Letter of Credit Issuer’s Letter of Credit Commitment, unless otherwise agreed by the Lenders cash in an amount equal to one hundred five percent applicable Letter of Credit Issuer.
(105%d) The parties hereto agree that the Existing Letters of Credit and the maximum amount then available Designated Letters of Credit shall be deemed to be drawn Letters of Credit for all purposes under this Agreement, without any further action by the applicable Letter(s) Borrowers, any Letter of Credit. Such cashCredit Issuer, any Lender or any other Person.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX (i) Subject to the terms and conditions set forth herein, (A) each L/C HERETOIssuer agrees, BORROWER SHALL HAVE THE RIGHT TO REQUESTin reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.03, AND AGENT AND LENDERS AGREE TO INCUR(1) from time to time ------------ on any Business Day during the period from the Closing Date until the Letter of Credit Cash Collateralization Date (x) to issue letters of credit for the account of the Borrower that constitute Standby Letters of Credit or Trade Letters of Credit ("Domestic Letters of Credit"), THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.and -------------------------- (y) to issue, or cause their respective Foreign Affiliate L/C Issuers to issue, letters of credit for the account of the Borrower that constitute Trade Letters of Credit ("Foreign Letters of Credit"), and in each case ------------------------- to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the -------------- Letters of Credit; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower; provided that no L/C Issuer shall be obligated to make any L/C Credit -------- Extension with respect to any Letter of Credit, and no Revolving Lender shall be
(a) Lenders agree(i) the aggregate undrawn amount of all outstanding Foreign ---------- Letters of Credit shall be deemed to be an amount equal to the Foreign Letter of Credit Sublimit. The Borrower shall have the right to change the Foreign Letter of Credit Sublimit and the L/C Issuer Foreign Letter of Credit Sublimits by delivering to the Administrative Agent a notice to such effect (the "Foreign Letter of Credit Sublimit Notice") on the ---------------------------------------- first Business Day of any calendar month; provided, however, that no -------- ------- more than eight such notices shall be delivered by the Borrower in any single Fiscal Year. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) An L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to Section 2.03(b)(v), (x) in the case ------------------ of a Standby Letter of Credit, the expiry date of such requested Standby Letter of Credit would occur more than twelve months after the date of issuance or last renewal, or (y) in the case of Trade Letter of Credit, the expiry date of such requested Trade Letter of Credit would occur more than six months after the date of issuance or last renewal, in each case unless the Required Lenders have approved such expiry date;
(C) in the judgment of the AgreementL/C Issuer, the foreign currency in which such Letter of Credit is requested to incur from time to time upon written request be denominated is not readily free and available;
(D) the issuance of Borrower such Letter of Credit would violate one or more policies of the L/C Issuer; or
(which request shall include an application in form and detail satisfactory to AgentE) not less than five (5) Business Days prior after giving effect to the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate face amount of all Letter then outstanding Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding denominated in a currency other than Dollars would exceed $25,000,000.
(whether or not then due and payableiii) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders The L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of amend any Letter of Credit having an expiry date which is later than if (A) the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall L/C Issuer would have no obligation at such time to issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph in its amended form under the terms hereof, or (aB) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject beneficiary of such Letter of Credit Obligations must be in form and substance satisfactory does not accept the proposed amendment to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Samples: Credit Agreement (Levi Strauss & Co)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions expressly set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or an Approved Alternate Currency for the account of the Borrower (provided that, any Letter of Credit may be for the benefit of any Subsidiary of the Borrower; provided, further, to the extent any such Subsidiary is not a Loan Party, such Letter of Credit shall be deemed an Investment in such Subsidiary and shall only be requested so long as it is permitted under Section 7.02) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit issued by it and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Lender’s Revolving Credit Commitment, or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit; provided, further, that notwithstanding anything herein to the contrary, DBNY shall have no obligation to issue trade or commercial Letters of Credit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementBorrower may, during the foregoing period, obtain Letters of Credit to incur from time replace Letters of Credit that have expired, terminated or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to time upon written request be issued hereunder and shall constitute Letters of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior Credit subject to the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and terms hereof.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur issue any Letter of Credit and, with respect to clauses (B) and (C) below, shall not issue any Letter of Credit, if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than 12 months after the date of issuance or last renewal, unless (1) each Appropriate Lender has approved of such expiration date or (2) the L/C Issuer thereof has approved such expiration date and the Outstanding Amount of L/C Obligations in respect of such requested Letter of Credit has been Cash Collateralized or backstopped in a manner reasonably satisfactory to the L/C Issuer;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (1) each Appropriate Lender has approved of such expiration date or (2) the L/C Issuer thereof has approved such expiration date and such Letter of Credit has been Cash Collateralized or backstopped in a manner reasonably satisfactory to the L/C Issuer;
(D) the issuance of such Letter of Credit would violate any policies of the L/C Issuer applicable to letters of credit generally;
(E) unless otherwise agreed to by the L/C Issuer, such Letter of Credit is in an initial amount less than $50,000 (for this purpose, taking the Dollar Equivalent of any Letter of Credit having issued in an expiry date which Approved Alternate Currency); or
(F) any Revolving Credit Lender is later than at that time a Defaulting Lender, unless the Commitment Termination Date. It is understood that L/C Issuer has entered into arrangements, including the determination delivery of Cash Collateral, satisfactory to the bank L/C Issuer (in its sole discretion) with the Borrower or other legally authorized Person such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (including Agent or Lendersafter giving effect to Section 2.17(a)(iv)) which shall issue or accept, as with respect to the case may be, any Defaulting Lender arising from either the Letter of Credit contemplated by this paragraph (a) shall then proposed to be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters issued or that Letter of Credit and related guaranties all other L/C Obligations as to which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to AgentL/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(biii) In the event that Agent or any other Lender An L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligationif (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such payment Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(iv) Each L/C Issuer shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) act on behalf of the Agreement, regardless Lenders with respect to any Letters of whether a Default or Event of Default shall have occurred Credit issued by it and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreementdocuments associated therewith, and each Lender L/C Issuer shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage have all of the benefits and immunities (A) provided to the aggregate amount of such payment. The failure of any Lender to make available to Administrative Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent Article 9 with respect to Letter any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit Obligations shall issued by it or proposed to be irrevocable issued by it and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit Application (and any other document, agreement or any Person for whom any instrument entered into by such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower L/C Issuer and the beneficiary named Borrower or in any favor of such Letter of Credit);
(iiiL/C Issuer) any draft, certificate or any other document presented under the Letter of Credit proving pertaining to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute such Letters of Credit as fully as if the term “Administrative Agent” as used in Article 9 included such L/C Issuer with respect to such acts or omissions, and releases of all Letter of Credit Obligations in form and substance satisfactory (B) as additionally provided herein with respect to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such casheach L/C Issuer.
Appears in 1 contract
Samples: First Lien Credit Agreement (Jason Industries, Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(ai) Lenders agree, subject The Revolving Letters of Credit. Subject to the terms and conditions set forth herein, (A) the Revolving L/C Issuers agree, in reliance upon the agreements of the Agreementother Revolving Credit Lenders set forth in this Section, to incur (1) from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) on any Business Days prior to Day during the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that period from the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) Effective Date until the Revolving Credit Borrowing Availability MINUS the then outstanding L/C Final Expiration Date, to issue Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit for the account of the Borrower or its Subsidiaries (other than Retail Holdco or any of its Subsidiaries when the Sleeve Documents are in effect), and related guaranties which are to amend, renew or extend the subject expiry dates of such Letter Revolving Letters of Credit Obligations must be in form and substance satisfactory to Agentpreviously issued by it, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2accordance with Section 2.3(b), and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated (2) to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made honor drawings if presented in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any such Revolving Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Revolving Letters of Credit issued for the account of the following circumstances:
(i) Borrower or its Subsidiaries; provided, that no Revolving L/C Issuer shall be obligated to make any lack of validity or enforceability of this Agreement or Revolving L/C Credit Extension with respect to any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Revolving Letter of Credit, if as of the date of such Revolving L/C Credit Extension, (1) the amounts outstanding under the Revolving Credit Facility would exceed the aggregate Revolving Credit Commitments, (2) the Revolving L/C Exposure would exceed the aggregate Revolving Credit Commitments; provided, further, that no Revolving L/C Issuer shall be required to issue, amend or renew any transferee of any Revolving Letter of Credit if, after giving effect thereto, all Revolving L/C Obligations held by such Revolving L/C Issuer with respect to all Revolving Letters of Credit issued by such Revolving L/C Issuer (or its Affiliates) would exceed the amount set forth on Schedule 2.1, opposite the name of such Revolving L/C Issuer, under the column entitled “Revolving L/C Issuer Amount for Revolving Letters of Credit”, or (3) the sum of the aggregate Outstanding Amount of the Revolving Credit Loans of any Person Revolving Credit Lender plus such Lender’s Pro Rata Share of the Revolving L/C Exposure would exceed such Lender’s Revolving Credit Commitment. Each request by the Borrower for whom any such transferee may be acting), the Agent, the issuance or amendment of a Revolving Letter of Credit issuershall be deemed to be a representation by the Borrower that the Revolving L/C Credit Extension so requested complies with the conditions set forth in the preceding sentence. Within the foregoing limits, any Lenderand subject to the terms and conditions hereof, the Borrower’s ability to obtain Revolving Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Revolving Letters of Credit to replace Revolving Letters of Credit that have expired or other Person, whether in connection with this Agreement, any Letter that have been drawn upon and paid. The Existing Letters of Credit identified on Schedule 1.1(a) as “Revolving Letters of Credit” shall be deemed to have been issued pursuant hereto, and from and after the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving to Effective Date shall be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Revolving Letters of Credit and releases of all Letter of Credit Obligations in form shall be subject to and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for governed by the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashterms and conditions hereof.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject Subject to and upon the terms and conditions herein set forth, any Borrower may request a Letter of the Agreement, to incur Credit Issuer at any time and from time to time upon written request of Borrower (which request shall include an application in form on or after the Closing Date and detail satisfactory prior to Agent) not less than five (5) the date that is 60 Business Days prior to the proposed issuance Revolving Maturity Date to issue, for the account of such Borrower or any of its Subsidiaries (the Borrowers or any such Subsidiary, a "Letter of Credit Obligor"), and in support of worker compensation, liability insurance, releases of contract retention obligations, contract performance guarantee requirements and other bonding obligations of a Borrower or any such other Letter of Credit Obligor incurred in the ordinary course of its business, and such other standby obligations of a Borrower and the other Letter of Credit Obligors that are acceptable to the Letter of Credit Issuer, and subject to and upon the terms and conditions herein set forth, such Letter of CreditCredit Issuer agrees to issue from time to time, irrevocable standby letters of credit denominated and payable in Dollars or Euros in such form as may be approved by such Letter of Credit Obligations Issuer and the Administrative Agent (each such letter of credit (and each Existing Letter of Credit described in respect section 3.1(d)), a "Letter of Credit" and collectively, the "Letters of Credit; PROVIDED").
(b) Notwithstanding the foregoing, HOWEVER(i) no Letter of Credit shall be issued, that and the Stated Amount of any outstanding Letter of Credit shall not be increased, if after giving effect thereto the Letter of Credit Outstandings would exceed either (x) $50,000,000 or (y) when added to the aggregate principal amount of all Revolving Loans and Swing Line Loans then outstanding, an amount equal to the Total Revolving Commitment at such time; (ii) no individual Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at (other than any one time outstanding (whether or not then due and payableExisting Letter of Credit) shall not exceed be issued which has an initial Stated Amount less than $100,000 unless such lesser Stated Amount is acceptable to the lesser Letter of (i) Twelve Million Dollars ($12,000,000) Credit Issuer; and (iiiii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such each Letter of Credit shall have an expiry date which is (including any renewal periods) occurring not later than the earlier of (yA) one year following from the date of issuance thereof and (z) thereof, unless a longer period is approved by the Commitment Termination Date. Lenders shall be under no obligation to incur relevant Letter of Credit Obligations Issuer and Lenders (other than any Defaulting Lender) holding a majority of the Total Revolving Commitment, and (B) 15 Business Days prior to the Revolving Maturity Date, in respect each case on terms acceptable to the Administrative Agent and the relevant Letter of Credit Issuer.
(c) Notwithstanding the foregoing, in the event a Lender Default exists, no Letter of Credit Issuer shall be required to issue any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person unless either (including Agent or Lendersi) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable Issuer has entered into arrangements satisfactory to Agent, Lenders it and Borrower. In addition, all the Company 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 Facility Percentage of the Letter of Credit Outstandings; or (ii) the issuance of such Letter of Credit, taking into account the potential failure of the Defaulting Lender or Lenders to risk participate therein, will not cause the Letter of Credit Issuer to incur aggregate credit exposure hereunder with respect to Revolving Loans and related guaranties which are Letter of Credit Outstandings in excess of its Revolving Commitment, and the subject Company has undertaken, for the benefit of such Letter of Credit Obligations must be Issuer, pursuant to an instrument satisfactory in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any such Letter of Credit ObligationIssuer, such payment shall then be deemed automatically not to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default thereafter incur Loans or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation Outstandings hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall which would cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuerIssuer to incur aggregate credit exposure hereunder with respect to Revolving Loans and Letter of Credit Outstandings in excess of its Revolving Commitment.
(d) Annex VI hereto contains a description of all letters of credit outstanding on, any Lenderand to continue in effect after, the Closing Date. Each such letter of credit issued by a bank that is or other Personbecomes a Lender under this Agreement on the Effective Date (each, whether in connection with an "Existing Letter of Credit") shall constitute a "Letter of Credit" for all purposes of this Agreement, any Letter issued, for purposes of section 3.4(a), on the Closing Date, and the Borrowers, the Administrative Agent and the applicable Lenders hereby agree that, from and after such date, the terms of this Agreement shall apply to such Letters of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or superseding any other document presented under agreement theretofore applicable to them to 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;
(iv) the surrender or impairment of any security for the performance or observance of any of extent inconsistent with the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Defaulthereof.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Samples: Credit Agreement (Om Group Inc)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the Revolving Credit Exposure of each Revolving Credit Lender shall not exceed such Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence and the immediately succeeding sentence. The Borrower agrees that it will not request, and the L/C Issuer shall have no obligation to 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 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. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if: (A) subject to Section 2.03(b)(iii), the expiry date of the Agreementrequested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or (B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (x) all the Revolving Credit Lenders and the L/C Issuer have approved such expiry date or (y) such Letter of Credit is cash collateralized on terms and pursuant to incur from time to time upon written request of Borrower (which request shall include an application in form and detail arrangements satisfactory to Agentthe L/C Issuer.
(iii) The L/C Issuer shall not less than five be under any obligation to issue any Letter of Credit if: (5A) Business Days prior any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the proposed issuance of such L/C Issuer from issuing the Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that or any Law applicable to the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at L/C Issuer or any one time outstanding request or directive (whether or not then due and payablehaving the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; andprohibit, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood or request that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting)L/C Issuer refrain from, the Agent, issuance of letters of credit generally or the Letter of Credit issuer, any Lender, in particular or other Person, whether in connection shall impose upon the L/C Issuer with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under respect to the Letter of Credit proving to be forgedany restriction, fraudulent, invalid reserve or insufficient capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding effect on the Commitment Termination Closing Date, Borrower or shall either (i) obtain substitute Letters of Credit impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and releases of all Letter of Credit Obligations which the L/C Issuer in form and substance satisfactory good xxxxx xxxxx material to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashit;
Appears in 1 contract
Samples: Credit Agreement (Tutor Perini Corp)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitments.
(ai) Subject to the terms and conditions set forth herein, (1) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders agreeset forth in this Section 2.03, (x) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Borrower (provided that any Letter of Credit may be for the benefit of any Subsidiary of Holdings) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (y) to honor drafts under the Letters of Credit, and (2) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if after giving effect to such L/C Credit Extension, (x) the Revolving Credit Exposure of any Lender would exceed such Lender’s Revolving Credit Commitment, or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. It is hereby acknowledged and agreed that each of the letters of credit described in Schedule 2.03(a) (the “Existing Letters of Credit”) shall constitute a “Letter of Credit” for all purposes of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, no L/C Issuer shall be required to incur issue commercial or trade Letters of Credit without its consent. Credit if:
(ii) An L/C Issuer shall be under no obligation to issue any Letter of
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense that was not applicable on the Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (i) all the Revolving Credit Lenders have approved such expiry date or (ii) such Letter of Credit will be Cash Collateralized or backstopped on terms reasonably satisfactory to the L/C Issuer;
(D) the issuance of such Letter of Credit would violate any material Laws, regulations or internal policies binding upon such L/C Issuer; or
(E) the Letter of Credit is to be denominated in a currency other than Dollars.
(iii) An L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to time 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.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon written request the delivery by the Borrower of Borrower a Letter of Credit Application to an L/C Issuer (which request shall include an application in form with a copy to the Administrative Agent), appropriately completed and detail satisfactory to Agent) signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by the relevant L/C Issuer and the Administrative Agent not less later than five 11:00 a.m. at least two (52) Business Days prior to the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether date or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or acceptamendment, as the case may be; or, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agentin each case, Lenders such later date and Borrower. In addition, all Letters of Credit and related guaranties which are time as the subject of such Letter of Credit Obligations must be relevant L/C Issuer may agree in form and substance satisfactory to Agent, a particular instance in its sole discretion.
(b) . In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect case of a Letter request for an initial issuance of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee such Letter of any Credit Application shall specify in form and detail reasonably satisfactory to the relevant L/C Issuer: (a) the proposed issuance date of the requested Letter of Credit (or any Person for whom any such transferee may which shall be actinga Business Day), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions ; (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(ivb) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documentsamount and currency thereof; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due expiry date thereof; (d) the name and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit address of the Lenders cash in an amount equal to one hundred five percent beneficiary thereof; (105%e) of the maximum amount then available documents to be drawn under the applicable Letter(s) presented by such beneficiary in case of Credit. Such cashany drawing thereunder;
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Duck Creek Technologies, Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of any Borrower or any of its respective Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of any Borrower or any of its respective Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the Revolving Credit Exposure of any Revolving Credit Lender shall not exceed such Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by any Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementBorrowers may, during the foregoing period, obtain Letters of Credit to incur replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from time and after the Closing Date shall be subject to time and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless the Administrative Agent and the L/C Issuer have approved such expiry date (it being understood that in the event the expiry date of any requested Letter of Credit would occur after the Letter of Credit Expiration Date, from and after the Letter of Credit Expiration Date, the Borrowers shall immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations in respect of such Letters of Credit in accordance with Section 2.17).
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon written request the L/C Issuer with respect to such Letter of Borrower Credit any restriction, reserve or capital requirement (for which request shall include an application in form and detail satisfactory to Agentthe L/C Issuer is not otherwise compensated hereunder) not less than five in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(5B) Business Days prior to the proposed issuance of such Letter of CreditCredit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have is in an expiry date which is later initial stated amount less than the earlier of $50,000;
(yD) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must is to be denominated in form and substance a currency other than Dollars or an Alternative Currency;
(E) the L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency;
(F) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(G) any Revolving Credit Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to Agentthe L/C Issuer (in its sole discretion) with the applicable Borrower or such Revolving Credit Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.18(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(biv) In the event that Agent or any other Lender The L/C Issuer shall make any payment on or pursuant to not amend any Letter of Credit Obligation, if the L/C Issuer would not be permitted at such payment shall then be deemed automatically time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of in its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. amended form under the terms hereof.
(v) The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations L/C Issuer shall be irrevocable and not subject under no obligation to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of amend any Letter of Credit if (or any Person for whom any A) the L/C Issuer would have no obligation at such transferee may be acting), the Agent, the time to issue such Letter of Credit issuer, any Lenderin its amended form under the terms hereof, or other Person, whether in connection with this Agreement, any (B) the beneficiary of such Letter of Credit, Credit does not accept the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any proposed amendment to such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(cvi) In The L/C Issuer shall act on behalf of the event that Revolving Credit Lenders with respect to any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit issued by it and releases the documents associated therewith, and the L/C Issuer shall have all of all Letter the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, issued by it or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available proposed to be drawn under issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the applicable Letter(sterm “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) of Credit. Such cashas additionally provided herein with respect to the L/C Issuer.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETOIn order to assist the Borrower in continuing the Shawmut Letters of Credit, BORROWER SHALL HAVE THE RIGHT TO REQUESTon the First Closing Date, AND AGENT AND LENDERS AGREE TO INCURand in establishing or opening Letters of Credit with an Issuing Bank to cover the purchase of inventory, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agreeequipment or otherwise, the Borrower has requested CITBC to join in the applications for such Letters of Credit, and/or guarantee payment or performance of such Letters of Credit and any drafts or acceptances thereunder through the issuance of the Letters of Credit Guaranty, thereby lending CITBC's credit to the Borrower and CITBC has agreed to do so. These arrangements shall be handled by CITBC subject to the terms and conditions set forth below.
(a) The amount, purpose and extent of the Agreement, to incur from time to time upon written request Letters of Credit and changes or modifications thereof by the Borrower (which request and/or the Issuing Bank of the terms and conditions thereof shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior all respects be subject to the proposed issuance prior approval of such Letter CITBC in the exercise of Creditits reasonable discretion provided however, Letter of Credit Obligations that: a) in respect of Letters of Credit; PROVIDED, HOWEVER, that no event may the aggregate amount of all Letter such outstanding Letters of Credit Obligations incurred by Lenders pursuant to this paragraph exceed, in the aggregate, at any one time outstanding (whether or not then due $5,000,000, and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (iib) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must all documentation in connection therewith shall be in form and substance satisfactory to Agentthe Borrower, CITBC and the Issuing Bank and (c) in no event may the aggregate amount of all such outstanding Letters of Credit plus outstanding Revolving Credit Loans exceed, in its sole discretionthe aggregate, at any one time $30,000,000.
(b) In The Borrower and CITBC hereto agree that the event that Agent documentation in connection with the Shawmut Letters of Credit is satisfactory in form and substance and such documentation shall not be amended without the prior written consent of CITBC.
2. CITBC shall have the right, without notice to the Borrower, to charge the Borrower's account on CITBC's books with the amount of any and all indebtedness, liability or obligation of any other Lender shall make any payment on or pursuant to any kind incurred by CITBC under the Letter of Credit ObligationGuaranties at the earlier of a) payment by CITBC under the Letter of Credit Guaranties, such payment or b) the occurrence of an Event of Default. Any amount charged to Borrower's loan account shall then be deemed automatically to constitute a Revolving Loan hereunder and shall incur interest at the rate provided in Section 9, paragraph 1 of this Financing Agreement.
3. The Borrower unconditionally indemnifies CITBC and holds CITBC harmless from any and all loss, claim or liability incurred by CITBC arising from any transactions or occurrences relating to Letters of Credit Advance under SECTION 1.2(A) established or opened for the Borrower's account, the collateral relating thereto and any drafts or acceptances thereunder, and all Obligations thereunder, including any such loss or claim due to any action taken by any Issuing Bank, other than for any such loss, claim or liability arising out of the Agreementgross negligence or willful misconduct by CITBC under the Letter of Credit Guaranties. The Borrower further agrees to hold CITBC harmless from any errors or omission, regardless of whether a Default negligence or Event of Default shall have occurred and be continuing and notwithstanding misconduct by the Issuing Bank. The Borrower's failure unconditional obligation to satisfy CITBC hereunder shall not be modified or diminished for any reason or in any manner whatsoever, other than as a result of CITBC's gross negligence or willful misconduct. The Borrower agrees that any charges incurred by CITBC for the conditions precedent set forth in Article 2Borrower account by the Issuing Bank shall be conclusive on CITBC and may be charged to the Borrower's account.
4. CITBC shall not be responsible for: the existence, and shall bear interest as provided in SECTION 1.8 character, quality, quantity, condition, packing, value or delivery of the Agreementgoods purporting to be represented by any documents; any difference or variation in the character, quality, quantity, condition, packing, value or delivery of the goods from that (expressed in the documents; the validity, sufficiency or genuineness of any documents or of any endorsements thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; the time, place, manner or order in which shipment is made; partial or incomplete shipment, or failure or omission to ship any or all of the goods referred to in the Letters of Credit or documents; any deviation from instructions; delay, default, or fraud by the shipper and/or anyone else in connection with the Collateral or the shipping thereof; or any breach of contract between the shipper or vendors and each Lender the Borrower. Furthermore, without being limited by the foregoing, CITBC shall not be obligated responsible for any act or omission with respect to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such paymentor in connection with any Collateral.
5. The failure of Borrower agrees that any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to action taken by CITBC, if taken in good faith, or any such Revolving Credit Loan or payment action taken by Agent any Issuing Bank, under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance connection with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter Letters of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuerGuaranties, the drafts or acceptances, or the Collateral, shall be binding on the Borrower and shall not put CITBC in any resulting liability to the Borrower. In furtherance thereof, CITBC shall have the full right and authority to clear and resolve any questions of non-compliance of documents; to give any instructions as to acceptance or rejection of any documents or goods; to execute any and all steamship or airways guaranties (and applications therefore), indemnities or delivery orders; to grant any extensions of the maturity of, time of payment for, or time of presentation of, any Lenderdrafts, acceptances, or other Persondocuments; and to agree to any amendments, whether in connection with this Agreementrenewals, any Letter of Creditextensions, the transactions contemplated herein modifications, changes or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance cancellations of any of the terms or conditions of any of the Loan Documentsapplications, Letters of Credit, drafts or acceptances; orall in CITBC's sole name, and the Issuing Bank shall be entitled to comply with and honor any and all such documents or instruments executed by or received solely from CITBC, all without any notice to or any consent from the Borrower.
(v6. Without CITBC's express consent and endorsement in writing, the Borrower agrees: a) not to execute any and all applications for steamship or airway guaranties, indemnities or delivery orders; to grant any extensions of the maturity of, time of payment for, or time of presentation of, any drafts, acceptances or documents; or to agree to any amendments, renewals, extensions, modifications, changes or cancellations of any of the terms or conditions of any of the applications, Letters of Credit, drafts or acceptances; and b) after the occurrence of any Default or an Event of DefaultDefault which is not cured within any applicable grace period, if any, or waived by CITBC, not to i) clear and resolve any questions of non-compliance of documents, or ii) give any instructions as to acceptance or rejection of any documents or goods.
(c) In the event 7. The Borrower agrees that any necessary import, export or other licenses or certificates for the import or handling of the Collateral will have been promptly procured; all foreign and domestic governmental laws and regulations in regard to the shipment and importation of the Collateral, or the financing thereof will have been promptly and full complied with; and any certificates in that regard that CITBC may at any time request will be promptly furnished. In this connection, the Borrower warrants and represents that all shipments made under any such Letters of Credit are in accordance with the laws and regulations of the countries in which the shipments originate and terminate, and are not prohibited by any such laws and regulations. The Borrower assumes all risk, liability and responsibility for, and agrees to pay and discharge, all present and future local, state, federal or foreign taxes, duties, or levies. Any embargo, restriction, laws, customs or regulations of any country, state, city, or other political subdivision, where the Collateral is or may be located, or wherein payments are to be made, or wherein drafts may be drawn, negotiated, accepted, or paid, shall be solely the Borrower's risk, liability and responsibility.
8. Upon any payments made to the Issuing Bank under a Letter of Credit ObligationGuaranty, whether CITBC shall acquire by subrogation, any rights, remedies, duties or not then due and payableobligations granted or undertaken by the Borrower to the Issuing Bank in any application for Letters of Credit, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute standing agreement relating to Letters of Credit or otherwise, all of which shall be deemed to have been granted to CITBC and releases of apply in all Letter of Credit Obligations respects to CITBC and shall be in form and substance satisfactory addition to Agentany rights, in its sole discretionremedies, duties or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashobligations contained herein.
Appears in 1 contract
Samples: Financing and Security Agreement (Devlieg Bullard Inc)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Original Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Borrower (provided that any Letter of Credit may be for the benefit of any Subsidiary of the Borrower) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Revolving Credit Exposure of any Lender would exceed such Lender’s Revolving Credit Commitment or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions of hereof, the Agreement, Borrower’s ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether that have expired or not then due that have been drawn upon and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and reimbursed.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having an expiry date which is later than the Commitment Termination Date. It is understood force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the determination issuance of the bank letters of credit generally or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon such L/C Issuer with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit and related guaranties any restriction, reserve or capital requirement (for which are such L/C Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit Obligations must be would violate any Laws binding upon such L/C Issuer; or
(E) such Letter of Credit is in form and substance satisfactory to Agent, in its sole discretionan initial amount less than $100,000.
(biii) In the event that Agent or any other Lender An L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligation, if (A) such payment shall then be deemed automatically L/C Issuer would have no obligation at such time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof, or (B) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and does not subject accept the proposed amendment to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Samples: Credit Agreement (CRC Health CORP)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Restatement Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrowers or their Subsidiaries in Dollars, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrowers or their Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the Revolving Credit Exposure shall not exceed such Xxxxxx’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrowers for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall AmericasActive:16021031.13 be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(i) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of the Agreementrequested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (x) all the Revolving Credit Lenders and the L/C Issuer have approved such expiry date or (y) such Letter of Credit is cash collateralized or backstopped on terms and pursuant to incur from time to time upon written request of Borrower (which request shall include an application in form and detail arrangements reasonably satisfactory to Agentthe L/C Issuer.
(ii) The L/C Issuer shall not less than five be under any obligation to issue any Letter of Credit if:
(5A) Business Days prior any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the proposed issuance of such L/C Issuer from issuing the Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that or any Law applicable to the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at L/C Issuer or any one time outstanding request or directive (whether or not then due and payablehaving the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall not exceed prohibit, or request that the lesser L/C Issuer refrain from, the issuance of (i) Twelve Million Dollars ($12,000,000) and (ii) letters of credit generally or the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit in particular or shall have an expiry date impose upon the L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is later than not otherwise compensated hereunder) not in effect on the earlier of Restatement Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Restatement Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(y) one year following the date of issuance thereof and (zB) the Commitment Termination Date. Lenders issuance of the Letter of Credit would violate one (1) or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, the Letter of Credit is in an initial stated amount less than $50,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Revolving Credit Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrowers or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of AmericasActive:16021031.13 Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iii) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(iv) The L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of amend any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person if (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(iiA) the existence of any claim, set-off, defense or other right which Borrower may L/C Issuer would have no obligation at any such time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, to issue the Letter of Credit issuer, any Lenderin its amended form under the terms hereof, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and B) the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving does not accept the proposed amendment to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment Letter of any security for the performance or observance of any of the terms of any of the Loan Documents; orCredit.
(v) The L/C Issuer shall act on behalf of the occurrence of Revolving Credit Lenders with respect to any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit issued by it and releases the documents associated therewith, and the L/C Issuer shall have all of all Letter the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, issued by it or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available proposed to be drawn under issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the applicable Letter(sterm “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) of Credit. Such cashas additionally provided herein with respect to the L/C Issuer.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject Subject to the terms and conditions of the set forth in this Agreement, to incur at any time and from time to time upon written request of Borrower from the Closing Date through the day that is thirty (which request shall include an application in form and detail satisfactory to Agent) not less than five (530) Business Days prior to the proposed issuance Revolving Credit Maturity Date, the Issuing Lender shall issue such Letters of such Letter Credit denominated in Dollars or in one or more Alternative Currencies as the Borrowers may request upon the delivery of Credit, a written request in the form of Exhibit E hereto (a “Letter of Credit Obligations in respect of Letters of Credit; PROVIDEDRequest”) to the Issuing Lender, HOWEVER, provided that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing continuing, (ii) upon issuance of such Letter of Credit, the Letter of Credit Liabilities shall not exceed the Letter of Credit Sublimit, (iii) in no event shall the sum of (A) the Revolving Credit Loans Outstanding, (B) the Swing Loans Outstanding and notwithstanding Borrower's failure (C) the amount of Letter of Credit Liabilities (after giving effect to satisfy all Letters of Credit requested) exceed the conditions precedent Total Commitment, (iv) in no event shall the outstanding principal amount of the Revolving Credit Loans, Swing Loans and Letters of Credit Liabilities (after giving effect to any requested Letters of Credit) exceed the Total Commitment or the Borrowing Base Availability or cause a violation of the covenant set forth in Article 2§9.1, (v) the conditions set forth in §§10 and 11 shall have been satisfied, (vi) no Revolving Credit Lender is a Defaulting Lender (provided Issuing Lender may, in its sole discretion, be entitled to waive this condition), unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Defaulting Lender to eliminate the 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 the Issuing Lender has actual or potential Fronting Exposure, as it may elect in its sole discretion, and (vii) in no event shall bear 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 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 Borrowers. The Issuing Lender shall be entitled to conclusively rely on such Person’s authority to request a Letter of Credit on behalf of Borrowers. The Issuing Lender shall have no duty to verify the authenticity of any signature appearing on a Letter of Credit Request. The Borrowers assume all risks with respect to the use of the Letters of Credit. Unless the Issuing Lender and the Majority Lenders otherwise consent, the term of any Letter of Credit shall not exceed a period of time commencing on the issuance of the Letter of Credit and ending one year after the date of issuance thereof, subject to extension pursuant to an “evergreen” clause reasonably acceptable to Agent and Issuing Lender (but in any event the term shall not extend beyond the Revolving Credit Maturity Date). The amount available to be drawn under any Letter of Credit shall reduce on a dollar-for-dollar (Dollar Equivalent) 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 three (3) Business Days (or such shorter period as the Issuing Lender may approve) prior to the date upon which the requested Letter of Credit is to be issued. Each such Letter of Credit Request shall contain (i) a statement as to the purpose for which such Letter of Credit shall be used (which purpose shall be in accordance with the terms of this Agreement), and (ii) a certification by an Authorized Officer or the chief financial or chief accounting officer of Parent Borrower 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. If any Letter of Credit Request does not specifically request that a Letter of Credit is to be issued in an Alternative Currency denomination, the requested Letter of Credit shall be issued in a Dollar denomination. The Borrowers 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 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.
(c) The 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 in 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 amount equal to its 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 affected by any other Revolving Credit Lender’s failure to perform as required herein with respect to such Letter of Credit or any other Letter of Credit.
(e) Upon the issuance of each Letter of Credit, the Borrowers shall pay to the Issuing Lender (i) for its own account, a Letter of Credit fronting fee calculated at the rate set forth in the Agreement Regarding Fees, and (ii) for the accounts of the Revolving Credit Lenders (including the Issuing Lender) in accordance with their respective percentage shares of participation in such Letter of Credit, a Letter of Credit fee calculated at the rate per annum equal to the Applicable Margin then applicable to Revolving Credit LIBOR Rate Loans on the Dollar Equivalent amount available to be drawn under such Letter of Credit. Such fees shall be payable in quarterly installments in arrears with respect to each Letter of Credit on the fifth day of each calendar quarter following the date of issuance and continuing on each quarter or portion thereof thereafter, as applicable, or on any earlier date on which the Commitments shall terminate and on the expiration or return of any Letter of Credit. In addition, the Borrowers shall pay to Issuing Lender for its own account within ten (10) 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 issued from time to time by Issuing Lender.
(f) In the event that any amount is drawn under a Letter of Credit by the beneficiary thereof, the Borrowers shall reimburse the Issuing Lender by having such amount drawn treated as an outstanding Revolving Credit Base Rate Loan under this Agreement (Borrowers 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 Base Rate Loan under this Agreement) and the 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 the Agent, for the Issuing Lender’s own account, an amount in Dollars equal to such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such Letter of Credit (to the extent of the Dollar Equivalent of the amount drawn). Borrowers further hereby irrevocably authorize and direct Agent to notify the Revolving Credit Lenders of Borrowers’ 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 §2.10(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 Overnight Rate until three (3) days after the date on which the Agent gives notice of such draw and at the Overnight 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 §2.10(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 SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment§12.5. The failure of any Revolving Credit Lender to make funds available to the Agent for Agent's own account an in such amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Revolving Credit Lender of its obligation hereunder to make funds available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect pursuant to this §2.10(f).
(g) If after the issuance of a Letter of Credit Obligations shall pursuant to §2.10(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 irrevocable and not subject refinanced as a Revolving Credit Loan, each Revolving Credit Lender will, on the date such Revolving Credit Loan pursuant to counterclaim§2.10(f) was to have been made, set-off or other defense or any other qualification or exception whatsoever and shall be made purchase an undivided participation interest in accordance with the terms and conditions Letter of this Agreement under all circumstances, including, without limitation, any Credit in an Dollar Equivalent amount equal to its Revolving Credit Commitment Percentage of the following circumstances: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 a Letter of Credit 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 returned, such Revolving Credit Lender will return to the Issuing Lender any portion thereof previously distributed by the Issuing Lender to it.
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence The issuance of any claimsupplement, set-offmodification, defense amendment, renewal or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee extension to or of any Letter of Credit shall be treated in all respects the same as the issuance of a new Letter of Credit.
(j) Borrowers assume all risks of the acts, omissions, or misuse of any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuerby the beneficiary thereof. Neither Agent, Issuing Lender nor any LenderLender will be responsible for (i) the form, validity, sufficiency, accuracy, genuineness or other Person, whether legal effect of any Letter of Credit or any document submitted by any party in connection with this Agreement, 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 transactions contemplated herein form, validity, sufficiency, accuracy, genuineness or legal effect of any unrelated transactions 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; (including iii) failure of any underlying transaction between Borrower and 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 named in of any Letter of Credit of the proceeds of any drawing under such Letter of Credit);
; (iiiviii) for any consequences arising from causes beyond the control of Agent or any Lender; or (ix) any draft, certificate adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Borrowers or any other document presented under Subsidiary or in the Letter relevant currency markets generally. None of Credit proving to be forgedthe foregoing will affect, fraudulent, invalid impair or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) prevent the surrender or impairment of any security for the performance or observance vesting of any of the terms 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 Loan Documentsforegoing, any act taken or omitted to be taken by Agent, Issuing Lender or the other Lenders in good faith will be binding on Borrowers and will not put Agent, Issuing Lender or the other Lenders under any resulting liability to Borrowers; or
(v) provided nothing contained herein shall relieve Issuing Lender for liability to Borrowers arising as a result of the occurrence gross negligence or willful misconduct of any Default or Event Issuing Lender as determined by a court of Default.
(c) In competent jurisdiction after the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases exhaustion of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashappeal periods.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO(a) If any Event of Default shall occur and be continuing, BORROWER SHALL HAVE THE RIGHT TO REQUESTon the Business Day on which the Company receives notice from the Collateral Agent demanding the deposit of cash collateral pursuant to this paragraph, AND AGENT AND LENDERS AGREE TO INCURthe Company agrees to deposit into the XX Xxxx Collateral Account, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTHan amount in Dollars in cash equal to 105% of the LC Exposure for all LC Participants; provided that the obligation to deposit such amount will become effective immediately, and such deposit will become immediately due and payable, without demand or other notice of any kind, upon the occurrence of the Acceleration Date. Each such deposit pursuant to this paragraph shall be held by the Collateral Agent as collateral for the payment and performance of the obligations of the Company with respect to Letters of Credit under Section 2.1. The Collateral Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Moneys in such account shall be applied by the Collateral Agent to reimburse the LC Issuer for LC Disbursements made by it with respect to Letters of Credit for which the LC Issuer has not been reimbursed pursuant to Section 2.1 and, to the extent not so applied, shall be held to satisfy drawings under Letters of Credit as they occur. If the Company is required to deposit an amount in the XX Xxxx Collateral Account as a result of the occurrence of an Event of Default (and the Acceleration Date shall not have occurred), such amount (to the extent not applied as aforesaid) shall be returned to the Company within three Business Days after all Events of Default have been cured or waived. If at any time either (x) the amount of cash held in the XX Xxxx Collateral Account exceeds 105% of the LC Exposure for all LC Participants or (y) any cash remains on deposit in the XX Xxxx Collateral Account after all Letters of Credit have either been fully drawn or expired, then such excess or remaining amount shall be (A) if the Acceleration Date shall have occurred or Event of Default shall be continuing, applied to the other Obligations, if any, in the order set forth in Section 7.6 above and (B) otherwise, returned to the Company.
(ab) Lenders agreeOn the Acceleration Date, subject the Administrative Agent shall request the Deposit Bank to withdraw from the LC Deposit Account and to pay same over to it, and shall return to each LC Participant such LC Participant's LC Deposits in an amount equal to the terms and conditions of amount by which such LC Participant's Unused Commitments at such time exceeds such LC Participant's LC Exposure at such time. If on such date the Agreement, to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter of Credit Obligations LC Issuer has made LC Disbursements in respect of Letters of Credit; PROVIDEDCredit for which the LC Issuer has not been reimbursed pursuant to Section 2.1(c) or by application of amounts held in the XX Xxxx Collateral Account pursuant to Section 7.7(a), HOWEVERthe Administrative Agent shall request the Deposit Bank to withdraw a portion of each LC Participant's LC Deposits (if any) in an amount equal to such LC Participant's Pro Rata Share of such unreimbursed LC Disbursements and deliver such amount to the LC Issuer in satisfaction of the obligations of the respective LC Participants under Section 2.1(c) (but not the Company's Reimbursement Obligation under Section 2.1(c), that which obligation shall only be satisfied by payment by the aggregate amount Company to the Administrative Agent for application in accordance with Section 2.1(c) or by application of amounts held in the XX Xxxx Collateral Account as set forth in Section 7.7(a) above). The Administrative Agent shall then request the Deposit Bank to withdraw all amounts remaining in the LC Deposit Account and deposit same in a new separate account or accounts for each applicable LC Participant maintained with the Collateral Agent (each a "LC Reserve Account"). The Administrative Agent shall deposit in each LC Participant's LC Reserve Account such LC Participant's Pro Rata Share of the amounts received from the LC Deposit Account as provided above. The Collateral Agent shall have sole dominion and control over each LC Reserve Account, and the amounts deposited in each LC Reserve Account shall be held in such LC Reserve Account until withdrawn as provided in paragraph (c), (d), or (e) below. The Collateral Agent shall maintain records enabling it to determine the amounts paid over to it and deposited in the LC Reserve Accounts in respect of each Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser amounts on deposit in respect of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such each Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Dateattributable to each LC Participant's Pro Rata Share. Lenders The amounts held in each LC Participant's LC Reserve Account shall be under no held as a reserve against the LC Exposures, shall be the property of such LC Participant, shall not constitute a loan to or give rise to any claim of or against any Credit Party and shall not give rise to any obligation on the part of any Credit Party to incur Letter of Credit Obligations pay interest to such LC Participant, it being agreed that the reimbursement obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which shall arise only at such times as drawings are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agentmade thereunder, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of DefaultSection 2.1.
(c) In the event that after the Acceleration Date any drawing shall be made in respect of a Letter of Credit which is not immediately reimbursed by the Company (including by application of amounts held in the XX Xxxx Collateral Account pursuant to Section 7.7(a)), the Collateral Agent shall, at the request of the LC Issuer, withdraw from the LC Reserve Account of each LC Participant any amounts, up to the amount of such LC Participant's Pro Rata Share of such drawing deposited in respect of such Letter of Credit and remaining on deposit and deliver such amounts to the LC Issuer in satisfaction of the obligation of the respective LC Participants under Section 2.1(c) (but not the Company's Reimbursement Obligation under Section 2.1(c), which obligation shall only be satisfied by payment by the Company to the Administrative Agent for application in accordance with Section 2.1(c) or by application of amounts held as cash collateral as set forth in Section 7.7(a) above).
(d) In the event that after the Acceleration Date any Letter of Credit Obligationshall expire undrawn, whether or not then due and payable, the Collateral Agent shall for any reason be outstanding withdraw from the LC Reserve Account of each LC Participant the amount remaining on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters deposit therein in respect of such Letter of Credit and releases distribute such amount to such LC Participant.
(e) With the prior written approval of all the Collateral Agent and the LC Issuer, any LC Participant may withdraw the amount held in its LC Reserve Account. Any LC Participant making such a withdrawal shall be unconditionally obligated, in the event there shall subsequently be a drawing under any Letter of Credit Obligations in form and substance satisfactory Credit, to pay over to the Collateral Agent, for the account of the LC Issuer on demand, its Pro Rata Share of such drawing or payment.
(f) Pending the withdrawal by any LC Participant of any amounts from its LC Reserve Accounts as contemplated by the above paragraphs, the Collateral Agent will, at the direction of such LC Participant and subject to such rules as the Collateral Agent may prescribe for the avoidance of inconvenience, invest such amounts. Each LC Participant that has not withdrawn all of the amounts in its sole discretionLC Reserve Accounts as provided in paragraph (e) above shall have the right, or (ii) pay at intervals reasonably specified by the Collateral Agent, to withdraw the earnings on investments so made by the Collateral Agent with amounts remaining in its LC Reserve Accounts and to retain such earnings for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashits own account.
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (McDermott International Inc)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or certain Subsidiaries, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Total Outstandings would exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans would exceed such Lender's Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. Each Letter of Credit Application shall be prepared and signed by the Borrower; provided, however, that the Borrower shall be permitted to designate any Subsidiary or other third party as the account party for the requested Letter of Credit, although, notwithstanding such designation, the Company shall be the actual account party for all purposes of this Agreement for such Letter of Credit and such designation shall not affect the Borrower's reimbursement obligations hereunder with respect to such Letter of Credit.
(ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good fxxxx xxxxx material to it;
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date; or
(D) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to all applicants for letters of credit from the L/C Issuer.
(iii) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as the L/C Issuer may agree in a particular instance in its sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may require. 24
(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by the L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions of hereof, the AgreementL/C Issuer shall, to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to on the proposed issuance of such Letter of Creditrequested date, issue a Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that for the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination account of the bank Borrower or other legally authorized Person (including Agent or Lenders) which shall issue or acceptenter into the applicable amendment, as the case may be, any in each case in accordance with the L/C Issuer's usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit contemplated in an amount equal to the product of such Lender's Pro Rata Share times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic renewal provisions (each, an "Auto-Renewal Letter of Credit"); provided that any such Auto-Renewal Letter of Credit must permit the L/C Issuer to prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by this paragraph giving prior notice to the beneficiary thereof not later than a day (athe "Nonrenewal Notice Date") in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the Lenders shall be reasonably acceptable deemed to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are have authorized (but may not require) the subject L/C Issuer to permit the renewal of such Letter of Credit Obligations must at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the L/C Issuer shall not permit any such renewal if (A) the L/C Issuer has determined that it would have no obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof (by reason of the provisions of Section 2.03(a)(ii) or otherwise), or (B) it has received notice (which may be by telephone or in form and substance satisfactory writing) on or before the day that is five Business Days before the Nonrenewal Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such renewal or (2) from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in its sole discretionSection 4.02 is not then satisfied.
(biv) In the event that Agent or any other Lender shall make any payment on or pursuant to Promptly after its delivery of any Letter of Credit Obligationor any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such payment Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) 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 then notify the Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on the date that is one Business Day after such notice that a beneficiary has given notice of a drawing under a Letter of Credit (each such date, an "Honor Date"), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing. If the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the "Unreimbursed Amount"), and the amount of such Lender's Pro Rata Share thereof. In such event, the Borrower shall be deemed automatically to constitute have requested a Revolving Credit Advance under SECTION 1.2(A) Committed Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the Agreement, regardless unutilized portion of whether a Default or Event of Default shall have occurred the Aggregate Commitments and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Lender (including the Lender acting as L/C Issuer) shall upon any notice pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for the account of the L/C Issuer at the Administrative Agent's Office in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest as provided in SECTION 1.8 at the Default Rate. In such event, each Lender's payment to the Administrative Agent for the account of the Agreement, L/C Issuer pursuant to Section 2.03(c)(G) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.
(iv) Until each Lender shall be obligated funds its Committed Loan or L/C Advance pursuant to pay an this Section 2.03(c) to reimburse the L/C Issuer for any amount calculated by applying drawn under any Letter of Credit, interest in respect of such Lender's Commitment Percentage to the aggregate amount Pro Rata Share of such payment. The failure amount shall be solely for the account of any Lender the L/C Issuer.
(v) Each Lender's obligation to make available Committed Loans or L/C Advances to Agent reimburse the L/C Issuer for Agent's own account an amount equivalent to a Lender's Commitment Percentage amounts drawn under Letters of Credit, as to any such Revolving Credit Loan or payment contemplated by Agent under or in respect of a Letter of Credit this Section 2.03(c), shall be absolute and unconditional and shall not relieve be affected by any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect theretocircumstance, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
including (iA) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, counterclaim, recoupment, defense or other right which Borrower such Lender may have at against the L/C Issuer, the Borrower or any time against other Person for any reason whatsoever; (B) the occurrence or continuance of a beneficiary named Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender's obligation to make Committed Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Letter Committed Loan Notice). No such making of Credit, any transferee an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any Letter of Credit (or any Person for whom any such transferee may be acting), payment made by the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, L/C Issuer under any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Defaulttogether with interest as provided herein.
(cvi) In If any Lender fails to make available to the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Administrative Agent for the benefit account of the Lenders cash L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in an Section 2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to one hundred five percent (105%) the Federal Funds Rate from time to time in effect. A certificate of the maximum amount then available L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be drawn under the applicable Letter(s) of Credit. Such cashconclusive absent manifest error.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Lenders agreeset forth in this Section 2.04, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit in Dollars for the account of the Borrower, and to renew Letters of Credit previously issued by it, in accordance with clause (b) below, and (2) to honor drafts under the Letters of Credit previously issued by it; and (B) the Revolving Lenders severally agree to risk participate in Letters of Credit issued for the account of the Borrower; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Revolving Lender shall be obligated to risk participate in, any Letter of Credit if as of the date of such proposed L/C Credit Extension, after giving effect to such L/C Extension, (x) the sum of (i) the aggregate Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C Obligations and (ii) an amount equal to 105% of the Outstanding Amount of all Foreign Currency Loans, would exceed the Aggregate Revolving Credit Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Revolving Lender, plus such Revolving Lender's Pro Rata Revolving Share of the Outstanding Amount of all L/C Obligations, plus such Revolving Lender's Pro Rata Revolving Share of the Outstanding Amount of all Swing Line Loans, plus such Revolving Lender's Pro Rata Revolving Share of an amount equal to 105% of the Outstanding Amount of all Foreign Currency Loans would exceed such Revolving Lender's Revolving Credit Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementBorrower may, from the Closing Date until the Letter of Credit Expiration Date, obtain Letters of Credit to incur replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from time issuing such Letter of Credit, or any Law applicable to time such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon written request such L/C Issuer with respect to such Letter of Borrower Credit any restriction, reserve or capital requirement (for which request shall include an application in form and detail satisfactory to Agentsuch L/C Issuer is not otherwise compensated hereunder) not less in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to Section 2.04(b)(iii) (Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of Credit), the expiry date of such requested Letter of Credit would occur more than five twelve months after the date of issuance or last renewal, unless the Required Revolving Lenders have approved such expiry date;
(5C) Business Days prior to the proposed expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Lenders have approved such expiry date; or
(D) the issuance of such Letter of Credit, Credit would violate one or more policies of such L/C Issuer.
(iii) No L/C Issuer shall be under any obligation to amend any Letter of Credit Obligations if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in respect its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(iv) Notwithstanding anything in this Agreement to the contrary, (A) no L/C Issuer shall be required to issue, amend, extend or renew any Letter of Credit issued by it if, after giving effect to such issuance, amendment, extension or renewal, the aggregate face amount of all Letters of Credit issued by such L/C Issuer would exceed $75,000,000 and (B) in no event shall CIBC or any of its Affiliates, in their respective capacities as L/C Issuers, be required to issue commercial Letters of Credit under this Agreement.
(b) Procedures for Issuance and Amendment of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashAuto-
Appears in 1 contract
Samples: Credit Agreement (Jarden Corp)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions expressly set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Restatement Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit at sight denominated in Dollars for the account of the Borrower or any Restricted Subsidiary of the Borrower and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Lxxxxx’s Revolving Credit Commitment or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the ability of the Agreement, Borrower and the Restricted Subsidiaries to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly the Borrower and the Restricted Subsidiaries may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether that have expired, terminated or not then due that have been drawn upon and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and reimbursed.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Restatement Effective Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Restatement Effective Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than 12 months after the date of issuance or last renewal unless (1) each Appropriate Lender and the L/C Issuer has approved of such expiration date or (2) the L/C Issuer thereof has approved of such expiration date and the Outstanding Amount of L/C Obligations in respect of any such requested Letter of Credit having an has been Cash Collateralized or backstopped in a manner reasonably satisfactory to such L/C Issuer;
(C) the expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such requested Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters would occur after the Letter of Credit and related guaranties which are Expiration Date, unless such Letter of Credit has been Cash Collateralized or backstopped in a manner reasonably satisfactory to such L/C Issuer;
(D) the subject issuance of such Letter of Credit Obligations must would violate any policies of such L/C Issuer applicable to letters of credit generally; it being understand and agreed that no L/C Issuer, nor any of their affiliates shall be in form and substance required to issue documentary or “trade” Letters of Credit (as opposed to “standby” Letters of Credit); and
(E) any Revolving Credit Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to Agent, such L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure as it may elect in its sole discretion.
(biii) In the event that Agent or any other Lender An L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligation, if (A) such payment shall then be deemed automatically L/C Issuer would have no obligation at such time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof, or (B) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and does not subject accept the proposed amendment to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;.
(iv) the surrender or impairment of any security for the performance or observance of any Each L/C Issuer shall act on behalf of the terms of Revolving Credit Lenders with respect to any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit issued by it and releases the documents associated therewith, and each L/C Issuer shall have all of all Letter the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, issued by it or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available proposed to be drawn under issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the applicable Letter(sterm “Administrative Agent” as used in Article IX included such L/C Issuer with respect to such acts or omissions, and (B) of Credit. Such cashas additionally provided herein with respect to such L/C Issuer.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Lenders agreeSubject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Banks set forth in this Section 1.07 (1) from time to time on any Business Day during the period from the Initial Borrowing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Borrower (provided that any of the Borrower's Subsidiaries may be named as the account party in any Letter of Credit), and to amend or renew Letters of Credit previously issued by it, in each case in accordance with clause (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Banks severally agree to participate in Letters of Credit issued for the account of the Borrower; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Bank shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the aggregate Outstanding Amount of all Revolving Loans and L/C Obligations would exceed the Total Revolving Loan Commitment or (y) the Outstanding Amount of all Revolving Loans of such Bank, plus such Bank's pro rata share of the Outstanding Amount of all L/C Obligations, would exceed such Bank's Revolving Loan Commitment. Within the foregoing limits, and subject to the terms and conditions of hereof, the Agreement, Borrower's ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether that have expired or not then due that have been drawn upon and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and reimbursed.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders The L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Legal Requirements applicable to the L/C Issuer or any request or directive (whether or not having an expiry date the force of law, but if not having the force of law, one which applies generally to a class or category of financial institutions of which the L/C Issuer is part and compliance with which is later than in accordance with the Commitment Termination Date. It is understood general practice of those institutions) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the determination L/C Issuer refrain from, the issuance of the bank letters of credit generally or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon the L/C Issuer with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and related guaranties which are the L/C Issuer in good faith deems material to it;
(B) subject to Section 1.07(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Required Banks have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Banks have approved such expiry date;
(D) the issuance of such Letter of Credit Obligations must would violate one or more policies of the L/C Issuer; or
(E) such Letter of Credit is in an initial amount less than $500,000.
(iii) The L/C Issuer shall be in form and substance satisfactory under no obligation to Agent, amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its sole discretionamended 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.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter Procedures for Issuance and Amendment of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter Letters of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashAuto-
Appears in 1 contract
Samples: Credit Agreement (Universal American Financial Corp)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX During the Commitment Period, (i) the L/C HERETOIssuer, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject to in reliance upon the terms and conditions commitments of the AgreementLenders set forth herein, agrees (A) to incur from time to time upon written request issue Letters of Credit for the account of Borrower on any Business Day, (which request shall include an application in form and detail satisfactory B) to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter amend or renew Letters of Credit Obligations in respect of previously issued hereunder, and (C) to honor drafts under Letters of Credit; PROVIDED, HOWEVER, and (ii) the Lenders severally agree to purchase from the L/C Issuer a participation interest in the Letters of Credit issued hereunder in an amount equal to such Lender’s Revolving Commitment Percentage thereof; provided that (A) the aggregate principal amount of all Letter L/C Obligations shall not exceed an amount equal to ten percent (10%) of Credit the Aggregate Revolving Commitments (as such amount may be adjusted in accordance with the provisions hereof, the “L/C Committed Amount”), (B) with regard to the Lenders collectively, the aggregate principal amount of Revolving Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (iix) the Aggregate Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of Committed Amount and (y) one year following the date of issuance thereof Adjusted Borrowing Base Amount for such date, and (zC) the Commitment Termination Date. Lenders shall be under no obligation with regard to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other each Lender shall make any payment on or pursuant to any Letter of Credit Obligationindividually, such payment shall then be deemed automatically to constitute a Lender’s Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit Obligations shall not relieve any other Lender of exceed its obligation hereunder respective Revolving Committed Amount. Subject to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting)hereof, the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving Borrower’s ability to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit shall be fully revolving, and releases of all Letter accordingly the Borrower may obtain Letters of Credit Obligations in form to replace Letters of Credit that have expired or that have been drawn upon and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashreimbursed.
Appears in 1 contract
Samples: Credit Agreement (Griffin-American Healthcare REIT II, Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject Subject to the terms and conditions of the this Agreement, Foothill agrees to incur from time to time upon written request issue letters of credit for the account of Borrower (which request each, an "L/C") or to issue guarantees of payment (each such guaranty, an "L/C Guaranty") with respect to letters of credit issued by an issuing bank for the account of Borrower. Foothill shall include an application in form and detail satisfactory have no obligation to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, issue a Letter of Credit Obligations in respect if any of Letters the following would result:
(i) the sum of Credit; PROVIDED, HOWEVER, that 35% of the aggregate amount of all Letter undrawn and unreimbursed Inventory Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due plus 100% of the aggregate amount of all other types of undrawn and payable) shall not unreimbursed Letters of Credit, would exceed the lesser Borrowing Base less the amount of outstanding Advances less the aggregate amount of Inventory Reserves and reserves established under Section 2.1(b); or
(iii) Twelve the aggregate amount of all undrawn or unreimbursed Letters of Credit (including Inventory Letters of Credit) would exceed the lower of: (x) the Maximum Revolving Amount less the amount of outstanding Advances less the aggregate amount of Inventory Reserves and reserves established under Section 2.1(b); or (y) Five Million Dollars ($12,000,000) and 5,000,000); or
(iiiii) the outstanding Obligations would exceed the Maximum Revolving Credit Borrowing Availability MINUS Amount. Borrower expressly understands and agrees that Foothill shall have no obligation to arrange for the then issuance by issuing banks of the letters of credit that are to be the subject of L/C Guarantees. Borrower and Foothill acknowledge and agree that certain of the letters of credit that are to be the subject of L/C Guarantees may be outstanding Revolving Credit Loans; and, PROVIDED, further, that no such on the Closing Date. Each Letter of Credit shall have an expiry date which is no later than the earlier of (y) one year following 60 days prior to the date of issuance thereof on which this Agreement is scheduled to terminate under Section 3.4 and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all such Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must shall be in form and substance satisfactory acceptable to Agent, Foothill in its sole discretion. If Foothill is obligated to advance funds under a Letter of Credit, Borrower immediately shall reimburse such amount to Foothill and, in the absence of such reimbursement, the amount so advanced immediately and automatically shall be deemed to be an Advance hereunder and, thereafter, shall bear interest at the rate then applicable to Advances under Section 2.6.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant Borrower hereby agrees to any Letter of Credit Obligationindemnify, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreementsave, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2defend, and shall bear interest as provided in SECTION 1.8 of the Agreementhold Foothill harmless from any loss, cost, expense, or liability, including payments made by Foothill, expenses, and each Lender shall be obligated to pay an amount calculated reasonable attorneys fees incurred by applying such Lender's Commitment Percentage to the aggregate amount Foothill arising out of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, except in the transactions contemplated herein event of gross negligence or wilful misconduct by Foothill. Borrower agrees to be bound by the issuing bank's regulations and interpretations of any unrelated transactions (including Letters of Credit guarantied by Foothill and opened to or for Borrower's account or by Foothill's interpretations of any underlying transaction between L/C issued by Foothill to or for Borrower's account, even though this interpretation may be different from Borrower's own, and Borrower understands and the beneficiary named agrees that Foothill shall not be liable for any error, negligence, or mistake, whether of omission or commission, in any such Letter of Credit);
(iii) any draft, certificate following Borrower's instructions or any other document presented under those contained in the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue modifications, amendments, or inaccurate in supplements thereto. Borrower understands that the L/C Guarantees may require Foothill to indemnify the issuing bank for certain costs or liabilities arising out of claims by Borrower against such issuing bank. Borrower hereby agrees to indemnify, save, defend, and hold Foothill harmless with respect to any respect;
loss, cost, expense (iv) the surrender including reasonable attorneys fees), or impairment liability incurred by Foothill under any L/C Guaranty as a result of Foothill's indemnification of any security such issuing bank, except for the performance gross negligence or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Defaultwilful misconduct by Foothill.
(c) In Borrower hereby authorizes and directs any bank that issues a letter of credit guaranteed by Foothill to deliver to Foothill all instruments, documents, and other writings and property received by the event that any Letter issuing bank pursuant to such letter of Credit Obligationcredit, whether or not then due and payableto accept and rely upon Foothill's instructions and agreements with respect to all matters arising in connection with such letter of credit and the related application.
(d) Any and all charges, commissions, fees, and costs incurred by Foothill relating to the letters of credit guaranteed by Foothill shall be considered Foothill Expenses for any reason purposes of this Agreement and immediately shall be outstanding on the Commitment Termination Date, reimbursable by Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashFoothill.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX During the Commitment Period, (i) the L/C HERETOIssuer, BORROWER SHALL HAVE THE RIGHT TO REQUESTin reliance upon the commitments of the Lenders set forth herein, AND AGENT AND LENDERS AGREE TO INCURagrees (A) to issue Letters of Credit for the account of the Borrower or any member of the Consolidated Group on any Business Day, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(aB) to amend or renew Letters of Credit previously issued hereunder, and (C) to honor drafts under Letters of Credit; and (ii) the Lenders agreeseverally agree to purchase from the L/C Issuer a participation interest in the Existing Letters of Credit and Letters of Credit issued hereunder in an amount equal to such Lender’s Revolving Commitment Percentage thereof; provided that (A) the aggregate principal amount of L/C Obligations shall not exceed SIXTY MILLION DOLLARS ($60,000,000) (as such amount may be increased or decreased in accordance with the provisions hereof, subject the “L/C Committed Amount”), (B) with regard to the Lenders collectively, the aggregate principal amount of Revolving Obligations shall not exceed the Aggregate Revolving Committed Amount, and (C) with regard to each Lender individually, such Lender’s Revolving Commitment Percentage of Revolving Obligations shall not exceed its respective Revolving Committed Amount. Subject to the terms and conditions of hereof, the Agreement, Borrower’s ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than be fully revolving, and accordingly the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case Borrower may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all obtain Letters of Credit and related guaranties which are the subject of such Letter to replace Letters of Credit Obligations must be in form that have expired or that have been drawn upon and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such paymentreimbursed. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter Existing Letters of Credit shall not relieve any other Lender of its obligation be deemed to have been issued hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with subject to and governed by the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Defaulthereof.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX During the Commitment Period, (i) the L/C HERETOIssuer, BORROWER SHALL HAVE THE RIGHT TO REQUESTin reliance upon the commitments of the Lenders set forth herein, AND AGENT AND LENDERS AGREE TO INCURagrees (A) to issue Letters of Credit for the account of the Borrower or any member of the Consolidated Group on any Business Day, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(aB) to amend or extend Letters of Credit previously issued hereunder, and (C) to honor drawings under Letters of Credit; and (ii) the Lenders agreeseverally agree to purchase from the L/C Issuer a participation interest in the Letters of Credit issued hereunder in an amount equal to such Lender’s Revolving Commitment Percentage thereof; provided that (A) the Outstanding Amount of L/C Obligations shall not exceed SEVEN MILLION DOLLARS ($7,000,000) (as such amount may be decreased in accordance with the provisions hereof, subject the “L/C Sublimit”), (B) with regard to the Lenders collectively, the Outstanding Amount of Revolving Loan Obligations shall not exceed the Aggregate Revolving Committed Amount, and (C) with regard to each Lender individually, such Lender’s Revolving Commitment Percentage of Revolving Loan Obligations shall not exceed its respective Revolving Committed Amount. Letters of Credit will be denominated in Dollars. Subject to the terms and conditions of hereof, the Agreement, Borrower’s ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than be fully revolving, and accordingly the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case Borrower may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all obtain Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute replace Letters of Credit that have expired or that have been drawn upon and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashreimbursed.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Lenders agreeSubject to the terms and conditions set forth herein, the L/C Issuer agrees, (1) from time to time on any Business Day during the Letter of Credit Availability Period, to issue Letters of Credit for the account of the Applicants, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.01(b) below, (2) concurrently with the satisfaction (or waiver by the L/C Issuer) of the conditions set forth in Sections 4.01 and 4.02, each outstanding Pre-Petition Letter of Credit shall be deemed issued and outstanding pursuant to this Agreement and shall be subject to the terms, conditions and other provisions of this Agreement, and (3) to honor drawings under the Letters of Credit; provided that the L/C Issuer shall have no obligation to issue a Letter of Credit if, after giving effect to the requested issuance, (i) the Outstanding Amount of the L/C Obligations exceeds the Commitment, or (ii) the Outstanding Amount of the L/C Obligations exceeds L/C Availability. Each request by the Applicant Representative for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Applicants that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Applicants’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementApplicants may, during the foregoing period, obtain Letters of Credit to incur from time to time replace Letters of Credit that have expired or that have been drawn upon written request and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Borrower Credit if:
(which request shall include an application in form and detail satisfactory to AgentA) such requested Letter of Credit is a Standby Letter of Credit;
(B) the expiry date of such requested Commercial Letter of Credit would occur more than 60 days after the date of issuance or last extension, unless the L/C Issuer has approved such expiry date;
(C) such Letter of Credit is not less than five (5) Business Days Cash Collateralized on or prior to the proposed date of issuance of such Letter of Credit, .
(iii) The L/C Issuer shall not be obligated to issue any Letter of Credit Obligations in respect if:
(A) any order, judgment or decree of Letters any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit; PROVIDED, HOWEVER, that or any Law applicable to the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at L/C Issuer or any one time outstanding request or directive (whether or not then due and payablehaving the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall not exceed prohibit, or request that the lesser L/C Issuer refrain from, the issuance of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no letters of credit generally or such Letter of Credit in particular or shall have an expiry date which is later than impose upon the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation L/C Issuer with respect to incur such Letter of Credit Obligations any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in respect of effect on the Closing Date, or shall impose upon the L/C Issuer any Letter of Credit having an expiry date unreimbursed loss, cost or expense which is later than was not applicable on the Commitment Termination Date. It is understood that Closing Date and which the determination of L/C Issuer in good xxxxx xxxxx material to it;
(B) the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject issuance of such Letter of Credit Obligations must would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) such Letter of Credit is to be denominated in form and substance satisfactory to Agent, in its sole discretiona currency other than Dollars; or
(D) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder or for the automatic extension of the expiry thereof.
(biv) In the event that Agent The L/C Issuer shall not be obligated to amend, renew, amend or extend any other Lender Pre-Petition Letter of Credit.
(v) The L/C Issuer shall make any payment on or pursuant to not amend any Letter of Credit Obligation, if the L/C Issuer would not be permitted at such payment shall then be deemed automatically time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof or if the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and does not subject accept the proposed amendment to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitments.
(ai) Subject to the terms and conditions set forth herein, (1) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders agreeset forth in this Section 2.03, (x) from time to time on any Business Day during the Availability Period for the Revolving Credit Facility, to issue Letters of Credit denominated in Dollars for the account of the Company (provided that any Letter of Credit may be for the benefit of any Subsidiary of the Company) and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (y) to honor drafts under the Letters of Credit and (2) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and, except in the case of the following clause (w), no Lender shall be obligated to participate in any Letter of Credit if immediately after giving effect to such L/C Credit Extension, (w) the aggregate L/C Exposure in respect of Letters of Credit issued by such L/C Issuer would exceed such L/C Issuer’s L/C Issuer Sublimit, (x) the aggregate L/C Exposure would exceed the Letter of Credit Sublimit or (y) the Revolving Credit Exposure of any Lender would exceed such Xxxxxx’s Revolving Credit Commitment. Within the foregoing limits, and subject to the terms and conditions of hereof, the Agreement, Company’s ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether that have expired or not then due that have been drawn upon and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and reimbursed.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit (and, in the case of clauses (B) and (C), shall not issue any Letter of Credit) if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having an the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) subject to Section 2.03(b)(iii), the expiry date which is later of such requested Letter of Credit would occur more than twelve months after the Commitment Termination date of issuance or last renewal, unless the relevant L/C Issuer has approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date. It is , unless the relevant L/C Issuer has approved such expiry date (it being understood that the determination participations of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, Revolving Credit Lenders in any undrawn Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters in any event terminate on the Letter of Credit and related guaranties which are Expiration Date);
(D) the subject issuance of such Letter of Credit Obligations must be in form would violate any Laws binding upon such L/C Issuer;
(E) the issuance would violate any policies or procedures of such L/C Issuer;
(F) the face amount of such Letter of Credit (together with all other Letters of Credit issued by such L/C Issuer and substance satisfactory outstanding at such time) shall exceed the L/C Issuer Sublimit applicable to Agent, in its sole discretionsuch L/C Issuer; or
(G) the Letter of credit is not a standby letter of credit.
(biii) In the event that Agent or any other Lender An L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligation, if (A) such payment shall then be deemed automatically L/C Issuer would have no obligation at such time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof, or (B) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and does not subject accept the proposed amendment to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject to Issuing Bank as principal: the terms and conditions Issuing Bank will act as principal of the Agreement, to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, each Letter of Credit Obligations Issued by it and each Bank will counter-indemnify the Issuing Bank in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed Outstanding Contingent Liabilities thereunder in the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.relevant Proportion;
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure Authorisation and Indemnity: the relevant Borrower unconditionally and irrevocably:
(i) authorises the Issuing Bank to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall comply with any demand which appears to be obligated to pay an amount calculated duly made by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or third party in respect of a Letter of Credit without any further reference to the relevant Borrower on the terms set out in Schedule 7 (Terms of Borrower's Indemnity);
(ii) agrees that its authorisation under clause 4.5(b)(i) and its indemnity under clause 4.5(b)(iv) shall remain in full force and effect and shall not relieve any other Lender of its obligation hereunder to make available to be discharged until such date as the Facility Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations (acting on the instructions of the Lenders to make payments to Issuing Bank) shall notify the Agent with relevant Borrower that it is satisfied (acting reasonably) that the Issuing Bank remains under no liability (actual or contingent) in respect to of any Letter of Credit;
(iii) agrees that each Letter of Credit Obligations shall be irrevocable and not is Issued subject to counterclaimand with the benefit of the provisions of Schedule 7 (Terms of Borrower's Indemnity); and
(iv) if a Finance Party suffers any liabilities, set-off damages, costs, expenses, losses and charges whatsoever in relation to or other defense arising out of any Letter of Credit Issued or any other qualification or exception whatsoever clause 4.6 (Banks' Guarantee and Indemnity), the benefit of Schedule 7 (Terms of Borrower's Indemnity) shall be made extend to such Finance Party. The relevant Borrower may finance a payment under such indemnity by drawing down an Advance if it is then entitled to do so in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit, and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that (a) Lenders agreeafter giving effect to any L/C Credit Extension with respect to any Letter of Credit, the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, and (b) no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit and no Revolving Credit Lender shall be obligated to participate in any Letter of Credit if after giving effect to such L/C Credit Extension, (x) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Revolving Credit Lender's Revolving Credit Commitment or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) An L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of the Agreementrequested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Required Revolving Credit Lenders have approved such expiry date; or
(B) subject to incur from time to time upon written request Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (x) all the Revolving Credit Lenders and such L/C Issuer have approved such expiry date or (y) the Borrower (which request shall include an application in form and detail has entered into arrangements reasonably satisfactory to Agentthe relevant L/C Issuer to Cash Collateralize the Outstanding Amount of such L/C Obligations or backstop such Letter of Credit on the later of (I) not less than five (5) Business Days prior to the proposed date of issuance of such Letter of Credit, Credit and (II) the 30th day prior to the Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Expiration Date.
(iii) An L/C Issuer shall not be under any obligation to issue any Letter of Credit Obligations incurred if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by Lenders pursuant its terms purport to this paragraph at enjoin or restrain such L/C Issuer from issuing the Letter of Credit, or any one time outstanding Law applicable to such L/C Issuer or any request or directive (whether or not then due and payablehaving the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall not exceed prohibit, or request that such L/C Issuer refrain from, the lesser issuance of (i) Twelve Million Dollars ($12,000,000) and (ii) letters of credit generally or the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit in particular or shall have an expiry date impose upon such L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is later than not otherwise compensated for hereunder) not in effect on the earlier of Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer is not otherwise compensated for hereunder and in good xxxxx xxxxx material to it;
(y) one year following the date of issuance thereof and (zB) the Commitment Termination Date. Lenders issuance of the Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, the Letter of Credit is in an initial stated amount less than $20,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Revolving Credit Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer's Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) An L/C Issuer shall not amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) An L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of amend any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person if (including Agent or LendersA) which shall such L/C Issuer would have no obligation at such time to issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lenderin its amended form under the terms hereof, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and B) the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving does not accept the proposed amendment to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment Letter of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of DefaultCredit.
(cvi) In An L/C Issuer shall act on behalf of the event that Revolving Credit Lenders with respect to any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit issued by it and releases the documents associated therewith, and such L/C Issuer shall have all of all Letter the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, issued by it or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available proposed to be drawn under issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the applicable Letter(sterm "Administrative Agent" as used in Article IX included such L/C Issuer with respect to such acts or omissions, and (B) of Credit. Such cashas additionally provided herein with respect to such L/C Issuer.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the Availability Period to issue Letters of Credit for the account of the Borrower or any of its Subsidiaries, and to amend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or any of its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementBorrower may, during the foregoing period, obtain Letters of Credit to incur from time to time replace Letters of Credit that have expired or that have been drawn upon written request of Borrower and reimbursed.
(which request ii) The L/C Issuer shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such issue any Letter of Credit, if the expiry date of the requested Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that would occur after the aggregate amount of all Letter of Credit Obligations incurred Expiration Date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by Lenders pursuant its terms purport to this paragraph at enjoin or restrain the L/C Issuer from issuing the Letter of Credit, or any one time outstanding Law applicable to the L/C Issuer or any request or directive (whether or not then due and payablehaving the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall not exceed prohibit, or request that the lesser L/C Issuer refrain from, the issuance of (i) Twelve Million Dollars ($12,000,000) and (ii) letters of credit generally or the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit in particular or shall have an expiry date which is later than impose upon the earlier of (y) one year following L/C Issuer with respect to the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in respect effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of any the Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination would violate one or more policies of the bank or other legally authorized Person L/C Issuer applicable to letters of credit generally;
(including Agent or LendersC) which shall issue or accept, as [Reserved];
(D) the case may be, any Letter of Credit contemplated by this paragraph is to be denominated in a currency other than Dollars; or
(aE) shall any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters issued or that Letter of Credit and related guaranties all other L/C Obligations as to which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to AgentL/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(biv) In the event that Agent or any other Lender The L/C Issuer shall make any payment on or pursuant to not amend any Letter of Credit Obligation, if the L/C Issuer would not be permitted at such payment shall then be deemed automatically time to constitute a Revolving Credit Advance under SECTION 1.2(A) of issue the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of in its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. amended form under the terms hereof.
(v) The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations L/C Issuer shall be irrevocable and not subject under no obligation to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of amend any Letter of Credit if (or any Person for whom any A) the L/C Issuer would have no obligation at such transferee may be acting), the Agent, time to issue the Letter of Credit issuer, any Lenderin its amended form under the terms hereof, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and B) the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving does not accept the proposed amendment to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment Letter of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of DefaultCredit.
(cvi) In The L/C Issuer shall act on behalf of the event that Lenders with respect to any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit issued by it and releases the documents associated therewith, and the L/C Issuer shall have all of all Letter the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, issued by it or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available proposed to be drawn under issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the applicable Letter(sterm “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) of Credit. Such cashas additionally provided herein with respect to the L/C Issuer.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETODuring the Commitment Period, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(ai) Lenders agree, subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Agreement, Lenders set forth in this Section 2.01(b) and Section 2.03 (A) to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter issue Letters of Credit Obligations in respect for the account of a Borrower on any Business Day, (B) to amend or renew Letters of Credit previously issued hereunder, and (C) to honor drafts under Letters of Credit; PROVIDED, HOWEVER, and (ii) the Lenders severally agree to purchase from the L/C Issuer a participation interest in the Letters of Credit issued hereunder in an amount equal to such Lender’s Revolving Commitment Percentage thereof; provided that (A) the aggregate principal amount of all Letter L/C Obligations shall not exceed TWENTY MILLION DOLLARS ($20,000,000) (the “L/C Committed Amount”), (B) with regard to the Lenders collectively, the aggregate principal amount of Credit Revolving Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (iix) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of Aggregate Committed Amount and (y) one year following the date of issuance thereof Borrowing Base Amount for such date, and (zC) the Commitment Termination Date. Lenders shall be under no obligation with regard to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other each Lender shall make any payment on or pursuant to any Letter of Credit Obligationindividually, such payment shall then be deemed automatically to constitute a Lender’s Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit Obligations shall not relieve any other Lender of exceed its obligation hereunder respective Revolving Committed Amount. Subject to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting)hereof, the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving Borrowers’ ability to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit shall be fully revolving, and releases of all Letter accordingly the Borrowers may obtain Letters of Credit Obligations in form to replace Letters of Credit that have expired or that have been drawn upon and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%reimbursed.
SUBPART 2.16 Section 2.01(c) of the maximum amount then available to be drawn under Existing Credit Agreement is hereby deleted in its entirety and replaced with the applicable Letter(s) of Credit. Such cashfollowing:
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO(a) Subject to the terms contained in this Agreement and the other Loan Documents, BORROWER SHALL HAVE THE RIGHT TO REQUESTupon the receipt of a notice in accordance with Section 2.2(b) requesting the issuance of a Letter of Credit, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTHthe Fronting Bank shall issue a Letter of Credit or Letters of Credit in such form as is reasonably acceptable to the applicable Borrower and the Fronting Bank (subject to the provisions of Section 2.2(b)) in an amount or amounts equal to the amount or amounts requested by the Borrower.
(ab) Lenders agreeEach Letter of Credit shall be issued in the minimum amount of the Dollar Equivalent Amount of One Hundred Thousand Dollars ($100,000) or such lesser amount as may be agreed to by the Fronting Bank.
(c) The Letter of Credit Usage shall be no more than the Letter of Credit Sublimit.
(d) In the event of any request for a drawing under any Letter of Credit by the beneficiary thereunder, the Fronting Bank shall notify the applicable Borrower and the Administrative Agent (and the Administrative Agent shall 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 (d), the applicable 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 Dollar Equivalent Amount of such drawing. Notwithstanding anything contained herein to the contrary, however, unless the applicable Borrower shall have notified the Administrative Agent and the Table of Contents Fronting Bank prior to 1:00 p.m. (New York City time) on the Business Day immediately preceding the date of such drawing that AMB LP, or the applicable Borrower, intends to reimburse the Fronting Bank for the Dollar Equivalent Amount of such drawing with funds other than the proceeds of the Loans, the applicable 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 Base Rate Loans on the date on which such drawing is honored and in an amount equal to the Dollar Equivalent Amount of such drawing. Each Bank (other than the Fronting Bank) shall, in accordance with Section 2.3(b), make available its Pro Rata 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 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, and the provisions of Section 10.17 shall otherwise apply to such failure.
(e) If, at the time a beneficiary under any Letter of Credit requests a drawing thereunder, an Event of Default as described in Section 7.1(f) or Section 7.1(g) shall have occurred and is continuing, then on the date on which the Fronting Bank shall have honored such drawing, the applicable Borrower shall have an unreimbursed obligation (the “Unreimbursed Obligation”) to the Fronting Bank in an amount equal to the amount of such drawing, which amount shall bear interest at the annual rate of the sum of: (i) the Base Rate; plus (ii) four percent (4%). Each Bank shall purchase an undivided participating interest in such drawing in an amount equal to its Pro Rata Share of such drawings, and upon receipt thereof the Fronting Bank shall deliver to such Bank an Unreimbursed Obligation participation certificate dated the date of the Fronting Bank’s receipt of such funds and in the amount of such Bank’s pro rata share.
(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: (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 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 Bank to be material, the cost to the Fronting Bank or such Bank of issuing or maintaining any Letter of Credit or participating therein, then the applicable 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 reasonable 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. Each Bank will promptly notify the applicable Borrower, and the Administrative Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to compensation pursuant to this Section 2.17 and will designate a different Applicable Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the reasonable judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank shall fail to notify the applicable Borrower of any such event within 90 days following the end of the month during which such event occurred, then such Borrower’s liability for any amounts described in this Section incurred by such Bank as a result of such event shall be limited to those attributable to the period occurring subsequent to the ninetieth (90th) day prior to, but excluding, the date upon which such Bank actually notified the applicable Borrower of the occurrence of such event. A certificate of any Bank claiming compensation under this Section 2.17 and setting forth a reasonably detailed calculation of the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of demonstrable error. In determining such amount, such Bank may use any reasonable averaging and attribution methods. Table of Contents
(g) Each Credit Party 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 to the extent of the bad faith, gross negligence or willful 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 to the extent of the bad faith, gross negligence or willful misconduct of the Fronting Bank. As between the Credit Parties and the Fronting Bank, the Credit Parties assume all risks of the acts and omissions of any beneficiary with respect to its use, or misuses of, the Letters of Credit issued by the Fronting Bank. 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) for the validity or insufficiency of any instrument transferring or assigning or purporting to transfer or assign any such 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) for failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit, other than as a result of the bad faith, gross negligence or willful misconduct of the Fronting Bank; (iv) for errors, omissions, interruptions or delays in transmission or delivery of any message, by mail, cable, telegraph, 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 of the proceeds thereof; (vii) for the misapplication by the beneficiary of any such Letter of Credit of the proceeds of such Letter of Credit; and (viii) for any consequence arising from causes beyond the control of the Fronting Bank, including any Governmental Acts, in each case other than to the extent of the bad faith, gross negligence or willful misconduct of the Fronting Bank. None of the above shall affect, impair or prevent the 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 issued by it or the related certificates, if taken or omitted in good faith, shall not put the Fronting Bank under any resulting liability to the Credit Parties; provided, that, notwithstanding anything in the foregoing to the contrary, the Fronting Bank will be liable to the Credit Parties for any damages suffered by them as a result of the Fronting Bank’s grossly negligent or willful failure to pay under any Letter of Credit after the presentation to it of a sight draft and certificates strictly in compliance with the terms and conditions of the AgreementLetter of Credit.
(h) 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 incur from time return to time upon written request any Credit Party, any reimbursement of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such any drawing under any Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that each Bank shall pay to the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether Fronting Bank or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or acceptAdministrative Agent, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount Pro Rata Share of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of without interest thereon unless the Lenders Fronting Bank or the Administrative Agent is required to make payments pay interest on such amounts to the Agent person recovering such payment, in which case with respect to Letter of Credit Obligations shall be irrevocable interest thereon, computed at the same rate, and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Datesame basis, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory as the interest that the Fronting Bank or the Administrative Agent is required to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashpay.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Lenders agreeSubject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Banks set forth in this Section 1.07 (1) from time to time on any Business Day during the period from the Initial Borrowing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Borrower (provided that any of the Borrower's Subsidiaries may be named as the account party in any Letter of Credit), and to amend or renew Letters of Credit previously issued by it, in each case in accordance with clause (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Banks severally agree to participate in Letters of Credit issued for the account of the Borrower; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Bank shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the aggregate Outstanding Amount of all Revolving Loans and L/C Obligations would exceed the Total Revolving Loan Commitment or (y) the Outstanding Amount of all Revolving Loans of such Bank, plus such Bank's pro rata share of the Outstanding Amount of all L/C Obligations, would exceed such Bank's Revolving Loan Commitment. Within the foregoing limits, and subject to the terms and conditions of hereof, the Agreement, Borrower's ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due the terms and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and conditions hereof.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders The L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Legal Requirements applicable to the L/C Issuer or any request or directive (whether or not having an expiry date the force of law, but if not having the force of law, one which applies generally to a class or category of financial institutions of which the L/C Issuer is part and compliance with which is later than in accordance with the Commitment Termination Date. It is understood general practice of those institutions) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the determination L/C Issuer refrain from, the issuance of the bank letters of credit generally or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon the L/C Issuer with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and related guaranties which are the L/C Issuer in good faith deems material to it;
(B) subject to Sectxxx 0.00(x)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Required Banks have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Banks have approved such expiry date;
(D) the issuance of such Letter of Credit Obligations must would violate one or more policies of the L/C Issuer; or
(E) such Letter of Credit is in an initial amount less than $500,000.
(iii) The L/C Issuer shall be in form and substance satisfactory under no obligation to Agent, amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its sole discretionamended 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.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter Procedures for Issuance and Amendment of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter Letters of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashAuto-
Appears in 1 contract
Samples: Credit Agreement (Universal American Financial Corp)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Lenders agree, subject Subject to the terms and conditions set forth herein, (a) each L/C Issuer agrees, in reliance upon the agreements of the Agreementother Lenders set forth in this Section 2.03, to incur (1) from time to time upon written request on any Business Day during the period from the Closing Date until the Letter of Borrower Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Company or any of its Subsidiaries, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (which request b) below, and (2) to honor drafts under the Letters of Credit; and (b) the Lenders severally agree to participate in Letters of Credit issued for the account of the Company; provided that no L/C Issuer shall include an application in form and detail satisfactory be obligated to Agent) not less than five (5) Business Days prior make any L/C Credit Extension with respect to the proposed issuance of such any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit, if as of the date of such L/C Credit Extension, (v) the Total Revolving Outstandings would exceed the Aggregate Revolving Commitments, (w) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans would exceed such Lender’s Revolving Commitment, (x) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Obligations Sublimit, (y)
(i) the Total Revolving Outstandings denominated in respect Alternative Currencies would exceed the Alternative Currency Sublimit, or (ii) to the extent the Administrative Agent and/or the Lenders or L/C Issuers, as applicable, have imposed a limit on the Dollar Equivalent amount of Loans or Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, with respect to any Alternative Currency, the Total Revolving Outstandings denominated in such Alternative Currency shall not exceed such limit, or (z) the Total Revolving Outstandings in respect of which Designated Borrowers are primarily obligated would exceed the Designated Borrower Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) No L/C Issuer shall issue any Letter of Credit contemplated by this paragraph if, subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date.
(aiii) No L/C Issuer shall be reasonably acceptable under any obligation to Agent, Lenders and Borrower. In addition, all Letters issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and related guaranties which are such L/C Issuer in good xxxxx xxxxx material to it;
(B) the subject expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date;
(C) the issuance of such Letter of Credit Obligations must would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(D) unless approved by the Administrative Agent and such L/C Issuer, such Letter of Credit (x) is in an initial amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit, or (y) is to be denominated in form and substance a currency other than Dollars or an Alternative Currency;
(E) the applicable L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency; or
(F) any Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to Agentsuch L/C Issuer (in its sole discretion) with the Company or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(biv) In the event that Agent or No L/C Issuer shall be under any other Lender shall make any payment on or pursuant obligation to amend any Letter of Credit Obligation, if (a) the L/C Issuer thereof would have no obligation at such payment shall then be deemed automatically time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof or (b) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations does not accept the proposed amendment to such Letter of Credit.
(v) No L/C Issuer shall be irrevocable and not subject under any obligation to counterclaimissue or amend any Letter of Credit if the L/C Issuer thereof has received written notice from any Lender, set-off or other defense the Administrative Agent or any other qualification Loan Party, on or exception whatsoever and shall be made in accordance with prior to the terms and conditions Business Day prior to the requested date of this Agreement under all circumstances, including, without limitation, any issuance or amendment of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a such Letter of Credit, any transferee of any Letter of Credit (that one or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether more applicable conditions contained in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or Article V shall not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashsatisfied.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject Subject to and upon the terms and conditions of the Agreementherein set forth, to incur at any time and from time to time upon written request of Borrower (which request shall include an application in form after the Closing Date and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance L/C Facility Maturity Date, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, Bank of America, N.A. agrees to continue under this Agreement for the account of the Borrower, the Existing Letters of Credit issued by it until the scheduled expiration or earlier termination thereof, and each other Letter of Credit Issuer agrees to issue from time to time from the Closing Date through the L/C Facility Maturity Date for the account of the Borrower letters of credit (the letters of credit issued on and after the Closing Date pursuant to this Section 3, together with the Existing Letters of Credit, collectively the “Letters of Credit” and each, a “Letter of Credit”), which Letters of Credit shall not exceed any such Letter of Credit, Credit Issuer’s Letter of Credit Obligations Commitment and in respect the aggregate shall not exceed the L/C Sublimit, in such form as may be approved by the applicable Letter of Credit Issuer in its reasonable discretion. On the Closing Date, (i) the Existing Letters of CreditCredit shall be deemed to be Letters of Credit issued pursuant to this Section 3 for the account of the Borrower, (ii) the Dollar Equivalent of the face amount of such Existing Letters of Credit shall be included in the calculation of L/C Obligations and (iii) all liabilities of the Borrower with respect to such Existing Letters of Credit shall constitute Obligations.
(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 (or with respect to any Letter of Credit Issuer, exceed such Letter of Credit Issuer’s Letter of Credit Commitment); PROVIDED, HOWEVER, that (ii) no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of all 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 Obligations incurred by Lenders pursuant 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 this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of Multicurrency Sublimit then in effect; (iiv) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such each Letter of Credit shall have an expiry expiration date which is occurring no later than the earlier of (y) one year following after the date of issuance thereof (or such longer period of time as may be agreed by the applicable Letter of Credit Issuer) (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 Revolver 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; (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 a Letter of Credit to have a Letter of Credit issued in its favor; and (zvii) 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 Revolver 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 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 two Business Days’ prior written notice to the Revolver Administrative Agent and the Letter of Credit Issuer (which notice the Revolver Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment Termination 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 enjoin or restrain any such Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to such Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Letter of Credit Issuer shall prohibit, or request that such Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which such Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date. Lenders , or shall impose upon such Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which 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 such Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the applicable Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than the Dollar Equivalent of $50,000, in the case of a commercial Letter of Credit, or the Dollar Equivalent of $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 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 Borrower has entered into arrangements reasonably satisfactory to the applicable Letter of Credit Issuer to eliminate such Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender or such risk has been reallocated in accordance with Section 2.16.
(f) The Letter of Credit Issuer shall not increase the Stated Amount of any Letter of Credit if any 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 Letter of Credit Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of amend any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person if (including Agent or LendersA) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable Issuer would have no obligation at such time to Agent, Lenders and Borrower. In addition, all Letters issue such Letter of Credit and related guaranties which are in its amended form under the subject terms hereof, or (B) the beneficiary of such Letter of Credit Obligations must be in form and substance satisfactory does not accept the proposed amendment to Agent, in its sole discretionsuch Letter of Credit.
(bh) In the event that Agent or any other Lender shall make any payment on or pursuant to any The Letter of Credit Obligation, such payment Issuer shall then be deemed automatically to constitute a act on behalf of the Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter any Letters of Credit Obligations shall be irrevocable issued by it and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever the documents associated therewith and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, Issuer shall have all of the benefits and immunities (A) provided to the Revolver Administrative Agent in Section 13 with respect to any Lender, acts taken or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under omissions suffered by the Letter of Credit proving Issuer in connection with Letters of Credit issued by it or proposed to be forged, fraudulent, invalid or insufficient issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) Section 13 included the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit ObligationIssuer with respect to such acts or omissions, whether or not then due and payable, shall for any reason be outstanding on (B) as additionally provided herein with respect to the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashIssuer.
Appears in 1 contract
Samples: First Lien Credit Agreement (Focus Financial Partners Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Lenders agreeset forth in this Section 2.04, (1) from time to time on any Business Day during the period from the Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the US Borrower, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of the US Borrower; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in, any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Dollar Equivalent of the Outstanding Revolving Credit Obligations would exceed the combined Revolving Loan Commitments, (y) such Lender's Pro Rata Share of the Dollar Equivalent of the Outstanding Revolving Credit Obligations (excluding the Outstanding Amount of such Lender's Negotiated Rate Loans) would exceed such Lender's Revolving Loan Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the US Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly the US Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. As of the AgreementEffective Date, each of the letters of credit listed on Schedule 2.04 hereto shall be deemed to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter be Letters of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that issued pursuant hereto and shall be subject to and governed by the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due terms and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and conditions hereof.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having an expiry date which is later than the Commitment Termination Date. It is understood force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the determination issuance of the bank letters of credit generally or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon such L/C Issuer with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and related guaranties which are such L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to Section 2.04(b)(iii), the subject expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the applicable L/C Issuer has approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date;
(D) the purpose or form of such Letter of Credit Obligations must would violate one or more policies of such L/C Issuer;
(E) such Letter of Credit is to be denominated in form a currency other than Dollars;
(F) a default of any Lender's obligations to fund under Section 2.04(c) exists or any Lender is at such time a Defaulting Lender hereunder, unless such L/C Issuer has entered into satisfactory arrangements with the US Borrower or such Lender to eliminate such L/C Issuer's risk with respect to such Lender; or
(G) the US Borrower shall not have agreed to pay the applicable L/C Issuer such fees and substance satisfactory expenses with respect to Agentsuch Letter of Credit as such L/C Issuer is customarily paid in similar situations in connection with the issuance, negotiation, processing and/or administration of letters of credit or as otherwise agreed to by such L/C Issuer and the US Borrower.
(iii) An L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its sole discretionamended 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.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter Procedures for Issuance and Amendment of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter Letters of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashAuto-
Appears in 1 contract
Samples: Credit Agreement (Libbey Inc)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETODuring the Commitment Period, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(ai) Lenders agree, subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Agreement, Lenders set forth in this Section 2.01(b) and Section 2.03 (A) to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter issue Letters of Credit Obligations in respect for the account of a Borrower on any Business Day, (B) to amend or renew Letters of Credit previously issued hereunder, and (C) to honor drafts under Letters of Credit; PROVIDED, HOWEVER, and (ii) the Lenders severally agree to purchase from the L/C Issuer a participation interest in the Letters of Credit issued hereunder in an amount equal to such Lender’s Revolving Commitment Percentage thereof; provided that (A) the aggregate principal amount of all Letter L/C Obligations shall not exceed FIVE MILLION DOLLARS ($5,000,000) (the “L/C Committed Amount”), (B) with regard to the Lenders collectively, the aggregate principal amount of Credit Revolving Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (iix) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of Aggregate Committed Amount and (y) one year following the date of issuance thereof Borrowing Base Amount for such date, and (zC) the Commitment Termination Date. Lenders shall be under no obligation with regard to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other each Lender shall make any payment on or pursuant to any Letter of Credit Obligationindividually, such payment shall then be deemed automatically to constitute a Lender’s Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit Obligations shall not relieve any other Lender of exceed its obligation hereunder respective Revolving Committed Amount. Subject to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting)hereof, the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving Borrowers’ ability to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit shall be fully revolving, and releases of all Letter accordingly the Borrowers may obtain Letters of Credit Obligations in form to replace Letters of Credit that have expired (or will expire within sixty (60) days) or that have been drawn upon and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashreimbursed.
Appears in 1 contract
Samples: Credit Agreement (Bellingham II Associates, L.L.C.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(ai) Lenders agree, Upon the terms and subject to the terms and conditions hereof, each Issuing Lender agrees to issue Letters of the Agreement, to incur Credit payable in Dollars from time to time after the Closing Date and prior to the earlier of the Maturity Date and the termination of the Commitments, upon written 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 Exposure plus the aggregate principal Dollar Equivalent Amount of the Loans then outstanding would exceed the Total Commitment, (B) in no event shall any Issuing Lender issue (x) any Letter of Credit having 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, further, that any Letter of Credit with a 365-day duration may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (x) above), (C) the Borrower shall not request that an Issuing Lender issue any Letter of Credit if, after giving effect to such issuance, the L/C Exposure would exceed $100,000,000, and (D) an Issuing Lender shall include be prohibited from issuing or renewing Letters of Credit hereunder upon the occurrence and during the continuance of an application Event of Default.
(ii) Immediately upon the issuance of 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 form such Letter of Credit in accordance with the percentage which its Commitment represents of 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 detail satisfactory the acceleration of the maturity of the Loans, provided that, if payment is not then due to Agentsuch beneficiary, such Issuing Lender shall deposit the funds in question in an account with such Issuing Lender to secure payment to such beneficiary and any funds so deposited shall be paid to such beneficiary of such Letter of Credit if conditions to such payment are satisfied or returned to the Administrative Agent for distribution to the Lenders (or, if all Obligations shall have been paid in full in cash, to the Borrower) not less if no payment to such beneficiary has been made and the final date available for drawings under such Letter of Credit has passed. Each payment or deposit of funds by an Issuing Lender as provided in this paragraph shall be treated for all purposes of this Agreement as a drawing duly honored by such Issuing Lender under the related Letter of Credit.
(b) 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 (5) 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), (iii) the face amount of such Letter of Credit, (iv) the expiration date of such Letter of Credit and (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 such Letter of Credit, would require the applicable Issuing Lender to make payment under such 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 notify each Lender of the issuance and the amount of each such Lender's respective participation therein.
(c) The payment of drafts under any Letter of Credit Obligations shall be made in accordance with the terms of such Letter of Credit and, 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, and in the absence of gross negligence or willful misconduct, 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, and in the absence of gross negligence or willful misconduct, 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. The Borrower's obligations under this Section 2.24 shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which the Borrower may have or have had against any Issuing Lender, any beneficiary of a Letter of Credit or any other Person.
(d) 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 such 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) 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 Maturity Date and provided that the conditions specified in Section 4.2 are then satisfied, such payment shall 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 draft is presented under a Letter of Credit 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) The Borrower agrees to pay the following amount to each Issuing Lender with respect to Letters of Credit issued by it hereunder:
(A) with respect to drawings made under any Letter of Credit, interest, payable on demand, on the amount paid by such Issuing Lender in respect of Letters each such drawing from the date of Creditthe 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; PROVIDEDprovided 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, HOWEVER, that the aggregate amount amendment or transfer of all each Letter of Credit Obligations incurred 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 Lenders pursuant 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 paragraph at Section 2.24(f), or any one time outstanding 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 requirement (whether or not then due and payablehaving the force of law) 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 not exceed be subject to any tax, levy, charge or withholding of any nature (other than withholding tax imposed by the lesser of United States or any political subdivision or taxing authority thereof or therein or any other tax, levy, charge or withholding (i) Twelve Million Dollars that is measured with respect to the overall net income of such Issuing Lender or such Lender ($12,000,000or 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, or by the jurisdiction 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 Revolving Credit Borrowing Availability MINUS laws of the then outstanding Revolving Credit Loans; andrelevant jurisdiction, PROVIDEDin 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, furtherwhether directly or by such being imposed on or suffered by any Issuing Lender or any Lender;
(B) any reserve, that no such Letter of Credit shall have an expiry date which deposit or similar requirement is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders or shall be under no obligation to incur Letter of Credit Obligations applicable, imposed or modified in respect of any Letter of Credit having an expiry date which is later than issued by any Issuing Lender or participations therein purchased by any Lender; or
(C) there shall be imposed on any Issuing Lender or any Lender any other condition regarding this Section 2.24, any Letter of Credit or any participation therein; and the Commitment Termination Date. It is understood that the determination result of the bank foregoing is directly or other legally authorized Person (including Agent indirectly to increase the cost to any Issuing Lender or Lenders) which any Lender of issuing, making or maintaining any Letter of Credit or of purchasing or maintaining any participation therein, or to reduce the amount receivable in respect thereof by any Issuing Lender or any Lender, then and in any such case such Issuing Lender or such Lender may, at any time, notify the Borrower, and the Borrower shall issue pay on demand such amounts as such Issuing Lender or acceptsuch 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 case may be, of any Letter of Credit contemplated by amount due pursuant to this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are Section 2.24 as set forth in a certificate setting forth the subject of such Letter of Credit Obligations must be calculation thereof in form and substance satisfactory to Agentreasonable detail shall, in its sole discretionthe absence of manifest error, be final, conclusive and binding on all of the parties hereto.
(bh) In the event that Agent or If at any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or time when an Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2continuing, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter Letters of Credit shall not relieve any other Lender of its obligation hereunder remain outstanding, then either the applicable Issuing Lender(s) or the Required Lenders may, at their option, require the Borrower to make available to Agent deposit cash or Cash Equivalents in a Cash Collateral Account in an amount equivalent equal to the full amount of the L/C Exposure or to furnish other security acceptable to the Administrative Agent and the applicable 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 issued by it; provided, however, that if prior to the Maturity Date, no Event of Default is then continuing, the Administrative Agent shall return all of such collateral relating to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments deposit to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:Borrower if requested by it.
(i) If, at any lack time, the L/C Exposure exceeds the aggregate Commitments, then the Required Lenders may, at their option, require the Borrower to deposit cash or 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 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 validity any drawings honored under Letters of Credit; provided that if subsequent to any such deposit such excess is reduced to an amount less than the portion of such deposited amounts and no Default or enforceability Event of this Agreement or any Default is then continuing, the Borrower shall be entitled to receive such excess collateral if requested by it.
(j) Upon the request of the other Loan Documents;
(ii) Administrative Agent, each Issuing Lender shall furnish to the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee Administrative Agent copies of any Letter of Credit (or any Person for whom any issued by such transferee Issuing Lender and such related documentation as may be acting), reasonably requested by the Administrative Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(ck) In Notwithstanding the event that 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 any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute all Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash.
Appears in 1 contract
Samples: Five Year Competitive Advance and Revolving Credit Agreement (PHH Corp)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(i) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Initial Revolving Credit Lenders agreeset forth in this Section 2.04, (1) from time to time on any Business Day until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or an Alternate Currency for the account of the Borrower and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.04(b), and (2) to honor drafts under the Letters of Credit; and (B) the Initial Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower; provided that no L/C Issuer shall be obligated to issue any commercial Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension or after giving effect thereto, (w) the Total Revolving Outstandings with respect to the Initial Revolving Credit Facility would exceed the aggregate Initial Revolving Credit Commitments, (x) the Revolving Outstandings of any Lender under the Initial Revolving Credit Facility would exceed such Lender’s Initial Revolving Credit Commitment, (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit or (z) the Outstanding Amount of the L/C Obligations with respect to Letters of Credit issued by such L/C Issuer would exceed such L/C Issuer’s L/C Commitment (in each case, taking the Dollar Equivalent of all amounts in an Alternate Currency). Within the foregoing limits, and subject to the terms and conditions of hereof, the Agreement, Borrower’s ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether that have expired or not then due that have been drawn upon and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and reimbursed.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having an expiry date which is later than the Commitment Termination Date. It is understood force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the determination issuance of the bank letters of credit generally or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon such L/C Issuer with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and related guaranties which are which, in each case, such L/C Issuer in good fxxxx xxxxx material to it;
(B) subject to Section 2.04(b)(iii), the subject expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless all Initial Revolving Credit Lenders (other than any Initial Revolving Credit Lender that is a Defaulting Lender) and such L/C Issuer have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all Initial Revolving Credit Lenders (other than any Initial Revolving Credit Lender that is a Defaulting Lender) and such L/C Issuer have approved such expiry date; or
(D) the issuance of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretionwould violate any Laws or one or more policies of such L/C Issuer.
(biii) In the event that Agent or any other Lender An L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligation, if (A) such payment shall then be deemed automatically L/C Issuer would have no obligation at such time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof, or (B) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and does not subject accept the proposed amendment to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX (i) Subject to the terms and conditions set forth herein, (A) the L/C HERETOIssuer agrees, BORROWER SHALL HAVE THE RIGHT TO REQUESTin reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, AND AGENT AND LENDERS AGREE TO INCUR(1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (a2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders agreeseverally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the Revolving Credit Exposure of each Revolving Credit Lender shall not exceed such Xxxxxx’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence and the immediately succeeding sentence. The Borrower agrees that it will not request, and the L/C Issuer shall have no obligation to 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 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. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if: (A) subject to Section 2.03(b)(iii), the expiry date of the Agreementrequested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or (B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (x) all the Revolving Credit Lenders and the L/C Issuer have approved such expiry date or (y) such Letter of Credit is cash collateralized on terms and pursuant to incur from time to time upon written request of Borrower (which request shall include an application in form and detail arrangements satisfactory to Agentthe L/C Issuer.
(iii) The L/C Issuer shall not less than five be under any obligation to issue any Letter of Credit if: (5A) Business Days prior any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the proposed issuance of such L/C Issuer from issuing the Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that or any Law applicable to the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at L/C Issuer or any one time outstanding request or directive (whether or not then due and payablehaving the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; andprohibit, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood or request that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting)L/C Issuer refrain from, the Agent, issuance of letters of credit generally or the Letter of Credit issuer, any Lender, in particular or other Person, whether in connection shall impose upon the L/C Issuer with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under respect to the Letter of Credit proving any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
it; (ivB) the surrender or impairment of any security for the performance or observance of any issuance of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether would violate one or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit more policies of the Lenders cash in an amount equal L/C Issuer applicable to one hundred five percent (105%) letters of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashcredit generally; 73 US-DOCS\140506888.9146702970.6
Appears in 1 contract
Samples: Credit Agreement (Tutor Perini Corp)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX During the Commitment Period, (i) the L/C HERETOIssuer, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject to in reliance upon the terms and conditions commitments of the AgreementLenders set forth herein, agrees (A) to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter issue Letters of Credit Obligations in respect for the account of a Borrower on any Business Day, (B) to amend or renew Letters of Credit previously issued hereunder, and (C) to honor drafts under Letters of Credit; PROVIDED, HOWEVER, and (ii) the Lenders severally agree to purchase from the L/C Issuer a participation interest in the Letters of Credit issued hereunder in an amount equal to such Lender’s Revolving Commitment Percentage thereof; provided that (A) the aggregate principal amount of all Letter L/C Obligations shall not exceed TWENTY FIVE MILLION DOLLARS ($25,000,000) (as such amount may be decreased in accordance with the provisions hereof, the “L/C Committed Amount”), (B) with regard to the Lenders collectively, the aggregate principal amount of Credit Revolving Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (iix) the Aggregate Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of Committed Amount and (y) one year following the date of issuance thereof Borrowing Base Amount for such date, and (zC) the Commitment Termination Date. Lenders shall be under no obligation with regard to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other each Lender shall make any payment on or pursuant to any Letter of Credit Obligationindividually, such payment shall then be deemed automatically to constitute a Lender’s Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit Obligations shall not relieve any other Lender of exceed its obligation hereunder respective Revolving Committed Amount. Subject to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting)hereof, the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving Borrowers’ ability to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit shall be fully revolving, and releases of all Letter accordingly the Borrowers may obtain Letters of Credit Obligations in form to replace Letters of Credit that have expired or that have been drawn upon and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashreimbursed.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) On the Fourth Restatement Effective Date, the Existing Letters of Credit shall be deemed to have been issued hereunder, and each Revolving Lender shall thereupon acquire a participation interest therein in accordance with its Revolving Proportionate Share and the terms of this Section 2.02. The Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Fourth Restatement Effective Date shall be subject to and governed by the terms and conditions hereof. On the terms and subject to the conditions set forth herein, (A) the L/C Issuer (1) shall, from time to time on any Business Day during the period from the Fourth Restatement Effective Date until the Letter of Credit Expiration Date, issue Letters of Credit in Dollars for the account of a Borrower in support of the obligations of such Borrower or any other Loan Party, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) shall honor drafts under the Letters of Credit; and (B) the Revolving Lenders agreeseverally agree to participate in Letters of Credit issued for the account of a Borrower in support of the obligations of such Borrower or any other Loan Party; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in, any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations would exceed the Total Revolving Loan Commitment at such time, (y) the aggregate Effective Amount of the Revolving Loans of any Lender, plus such Lender’s Total Lender Risk Participation would exceed such Lender’s Revolving Proportionate Share of the Total Revolving Loan Commitment, or (z) the Effective Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Each Letter of Credit shall be in a form acceptable to the L/C Issuer. Within the foregoing limits, and subject to the terms and conditions of hereof, the Agreement, Borrowers’ ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether that have expired or not then due that have been drawn upon and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and reimbursed.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders The L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit if: -58- 4159-4780-3173
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Requirement of Law applicable to the L/C Issuer or any request or directive (whether or not having an expiry date which is later than the Commitment Termination Date. It is understood force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the determination L/C Issuer refrain from, the issuance of the bank letters of credit generally or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon the L/C Issuer with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Fourth Restatement Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Fourth Restatement Effective Date and related guaranties which are the L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to Section 2.02(b)(iii), (1) in the case of any Standby Letter of Credit, the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal or (2) in the case of any Commercial Letter of Credit, the expiry date of such requested Letter of Credit would occur more than 180 days after the date of issuance or last renewal, in either case unless the Required Revolving Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent would violate one or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) more policies of the Agreement, regardless of whether a Default L/C Issuer or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any the applicable Letter of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan DocumentsCredit Application;
(iiE) the existence such Letter of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named Credit is in a face amount less than $25,000, in the case of a Commercial Letter of Credit, any transferee or $100,000, in the case of any other type of Letter of Credit, or denominated in a currency other than Dollars;
(F) such Letter of Credit is in violation of the ISP, the UCP or other applicable Governmental Rule; or
(or G) any Person for whom any Lender is at such transferee may be actingtime a Defaulting Lender hereunder, unless such Lender’s Fronting Exposure has been reallocated to other Lenders in accordance with Section 2.16(a), Cash Collateral has been provided as set forth in Section 2.16(c) or the Agent, L/C Issuer has entered into arrangements satisfactory to the Letter of Credit issuer, any Lender, L/C Issuer with the Borrowers or other Person, whether in connection with this Agreement, such Defaulting Lender to eliminate the L/C Issuer’s Fronting Exposure. -59- 4159-4780-3173
(iii) The L/C Issuer shall be under no obligation to amend any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitments.
(ai) Subject to the terms and conditions set forth herein, (1) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders agreeset forth in this Section 2.04, (x) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit in Dollars or Canadian Dollars for the account of the Borrower (provided that any Letter of Credit may be for the benefit of any Subsidiary of the Borrower) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.04(b), and (y) to honor drafts under the Letters of Credit and (2) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.04; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if after giving effect to such L/C Credit Extension, (x) the Revolving Credit Exposure of any Lender would exceed such Lender’s Revolving Credit Commitment, or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. It is hereby acknowledged and agreed that each of the Agreementletters of credit described in Schedule 2.04(a) (the “Existing Letters of Credit”), to incur from time to time upon written request of Borrower (which request were issued under the Existing Credit Agreement and remain outstanding on the Closing Date, shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such constitute a “Letter of Credit, Letter ” for all purposes of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that this Agreement and shall be deemed issued under this Agreement on the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and Closing Date.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having an expiry date which is later than the Commitment Termination Date. It is understood force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the determination issuance of the bank letters of credit generally or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon such L/C Issuer with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit and related guaranties any restriction, reserve or capital requirement (for which are such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) subject to Section 2.04(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit Obligations must would violate any Laws binding upon such L/C Issuer; or
(E) the Letter of Credit is to be denominated in form and substance satisfactory to Agent, in its sole discretiona currency other than Dollars or Canadian Dollars.
(biii) In the event that Agent or any other Lender An L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligation, if (A) such payment shall then be deemed automatically L/C Issuer would have no obligation at such time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof, or (B) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and does not subject accept the proposed amendment to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Samples: First Lien Credit Agreement (SMART Technologies Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETOIn addition to each Obligor's ability to ----------------- request that Banks make Loans pursuant to subsection 2.1(a), BORROWER SHALL HAVE THE RIGHT TO REQUESTeach Obligor may request, AND AGENT AND LENDERS AGREE TO INCURin accordance with the provisions of this subsection 2.11, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject to the terms and conditions of the Agreement, to incur from time to time upon written request of Borrower (during the period from the Effective Date until the date which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days is 30 days prior to the proposed issuance Termination Date, that one or more Issuing Banks issue Letters of Credit for the account of such Letter Obligor for the purposes specified in the definitions of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Commercial Letters of Credit and related guaranties which are the subject Standby Letters of such Letter of Credit Obligations must be in form and substance satisfactory to AgentCredit. Each Obligor may, in its sole discretion.
(b) In the event that Agent , determine whether or any other Lender shall make any payment on or pursuant to any not each Letter of Credit Obligation, such payment shall then so requested will be deemed automatically subject to constitute a Revolving Credit Advance under SECTION 1.2(Aparticipation by all the Banks pursuant to subsection 2.11(c) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and (each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender subject to participation being a "Participated Letter of its obligation hereunder to make available to Agent an amount equivalent to Credit" and collectively, the "Participated Letters of Credit", and such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, setparticipation by all the Banks pursuant to subsection 2.11(d) being a "Non-off or other defense or any other qualification or exception whatsoever Participated Letter of Credit" and shall be made in accordance with collectively the "Non-Participated Letters of Credit"). Subject to the terms and conditions of this Agreement under all circumstances, including, without limitationand in reliance upon the representations and warranties of the Obligors herein set forth, any one or more Banks may, but shall not be obligated to, issue such Letters of Credit in accordance with the following circumstances:provisions of this subsection 2.11 and in accordance with such Bank's standard form of application for issuance of letters of credit; provided that no Obligor -------- shall request that any Issuing Bank issue (and no Issuing Bank shall issue):
(i) any lack Letter of validity or enforceability Credit if, after giving effect to such issuance, the Total Utilization of this Agreement or any of Commitments would exceed the other Loan DocumentsTotal Commitment then in effect;
(ii) any Standby Letter of Credit having an expiration date later than the existence earlier of any claim, set-off, defense or other right (1) the date which Borrower may have at any time against a beneficiary named in a is 30 days prior to the Termination Date and (2) the date which is one year from the date of issuance of such Standby Letter of Credit, ; provided that the immediately preceding clause (2) shall not -------- prevent any transferee of any Issuing Bank from agreeing that a Standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each (or any Person for whom any it being understood that such transferee may be acting), the Agent, the Standby Letter of Credit issuershall not be automatically extended to a date later than 30 days prior to the Termination Date) unless such Issuing Bank elects not to extend for any such additional period; and provided, any Lender, or other Person, whether in connection with this Agreement, any further that such Issuing Bank shall elect not to extend -------- ------- such Standby Letter of Credit, Credit if it has received written notice from Administrative Agent that an Event of Default has occurred and is continuing (and has not been waived in accordance with subsection 11.3) at the transactions contemplated herein time such Issuing Bank must elect whether or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any not to allow such Letter of Credit)extension;
(iii) any draft, certificate or any other document presented under the Commercial Letter of Credit proving (other than a Usance Letter of Credit) having an expiration date (1) later than the earlier of (x) the date which is 30 days prior to be forged, fraudulent, invalid the Termination Date and (y) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or insufficient (2) that is otherwise unacceptable to the applicable Issuing Bank in any respect or any statement therein being untrue or inaccurate in any respectits reasonable discretion;
(iv) any Usance Letter of Credit (1) having an expiration date later than (x) the surrender date which is 100 days prior to the Termination Date, or impairment (y) 180 days from the date of issuance of such Usance Letter of Credit or (2) that is otherwise unacceptable to the applicable Issuing Bank in its reasonable discretion;
(v) any security for the performance or observance Letter of any of the terms of any of the Loan DocumentsCredit denominated in a currency other than Dollars; or
(vvi) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligationnot governed by the Uniform Customs and Practice for Documentary Credits (1993 Revision) International Chamber of Commerce Brochure No. 500, whether or not then due and payable, shall any subsequent revisions thereto as agreed between the Obligor for whose account such Letter of Credit is issued and the applicable Issuing Bank. In case of any reason be outstanding on the Commitment Termination Date, Borrower shall either conflict between (i) obtain substitute Letters an Issuing Bank's standard form of Credit application for issuance of letters of credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay the terms of this Agreement, the terms of this Agreement shall govern. Notwithstanding anything to Agent for the benefit of the Lenders cash contrary contained in an amount equal Issuing Bank's standard form of application for issuance of letters of credit, no lien shall be granted to one hundred five percent (105%) such Issuing Bank on any property of Borrower or its Subsidiaries to secure the maximum amount then available obligation of an Obligor with respect to be drawn under the applicable Letter(s) a Letter of Credit. Such cash, except as otherwise provided in Section 9.4.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) The Letter of Credit Commitment. %5. Subject to the terms and conditions expressly set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or an Approved Alternate Currency for the account of the Borrower (provided that, any Letter of Credit may be for the benefit of any Subsidiary of the Borrower; provided, further, to the extent any such Subsidiary is not a Loan Party, such Letter of Credit shall be deemed an Investment in such Subsidiary and shall only be requested so long as it is permitted under Section 7.02) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit issued by it and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Lender’s Revolving Credit Commitment, or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit; provided, further, that notwithstanding anything herein to the contrary, DBNY shall have no obligation to issue trade or commercial Letters of Credit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementBorrower may, during the foregoing period, obtain Letters of Credit to incur from time replace Letters of Credit that have expired, terminated or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to time upon written request be issued hereunder and shall constitute Letters of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior Credit subject to the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of terms hereof.
(i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur issue any Letter of Credit and, with respect to clauses (B) and (C) below, shall not issue any Letter of Credit, if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than 12 months after the date of issuance or last renewal, unless (1) each Appropriate Lender has approved of such expiration date or (2) the L/C Issuer thereof has approved such expiration date and the Outstanding Amount of L/C Obligations in respect of such requested Letter of Credit has been Cash Collateralized or backstopped in a manner reasonably satisfactory to the L/C Issuer;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (1) each Appropriate Lender has approved of such expiration date or (2) the L/C Issuer thereof has approved such expiration date and such Letter of Credit has been Cash Collateralized or backstopped in a manner reasonably satisfactory to the L/C Issuer;
(D) the issuance of such Letter of Credit would violate any policies of the L/C Issuer applicable to letters of credit generally;
(E) unless otherwise agreed to by the L/C Issuer, such Letter of Credit is in an initial amount less than $50,000 (for this purpose, taking the Dollar Equivalent of any Letter of Credit having issued in an expiry date which Approved Alternate Currency); or
(F) any Revolving Credit Lender is later than at that time a Defaulting Lender, unless the Commitment Termination Date. It is understood that L/C Issuer has entered into arrangements, including the determination delivery of Cash Collateral, satisfactory to the bank L/C Issuer (in its sole discretion) with the Borrower or other legally authorized Person such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (including Agent or Lendersafter giving effect to Section 2.17(a)(iv)) which shall issue or accept, as with respect to the case may be, any Defaulting Lender arising from either the Letter of Credit contemplated by this paragraph (a) shall then proposed to be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters issued or that Letter of Credit and related guaranties all other L/C Obligations as to which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to AgentL/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(bii) In the event that Agent or any other Lender An L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligationif (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such payment Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(iii) Each L/C Issuer shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) act on behalf of the Agreement, regardless Lenders with respect to any Letters of whether a Default or Event of Default shall have occurred Credit issued by it and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreementdocuments associated therewith, and each Lender L/C Issuer shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage have all of the benefits and immunities (A) provided to the aggregate amount of such payment. The failure of any Lender to make available to Administrative Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent Article IX with respect to Letter any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit Obligations shall issued by it or proposed to be irrevocable issued by it and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit Application (and any other document, agreement or any Person for whom any instrument entered into by such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower L/C Issuer and the beneficiary named Borrower or in any favor of such Letter of Credit);
(iiiL/C Issuer) any draft, certificate or any other document presented under the Letter of Credit proving pertaining to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included such L/C Issuer with respect to such acts or omissions, and releases of all Letter of Credit Obligations in form and substance satisfactory (B) as additionally provided herein with respect to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such casheach L/C Issuer.
Appears in 1 contract
Samples: First Lien Credit Agreement (Jason Industries, Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the earlier to occur of the Letter of Credit Expiration Date or the termination of the Availability Period, to issue Letters of Credit denominated in Dollars, or, in the case of any Letters of Credit issued for the Canadian Borrower, Dollars or Canadian Dollars, at the request of the Borrower Agent for the account of a Borrower and to amend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of a Borrower and any drawings thereunder; provided that the Letter of Credit Issuer shall not make any Letter of Credit Extension with respect to any Letter of Credit, and no Revolving Credit Lender shall be obligated to participate in any Letter of Credit, if as of the date of such Letter of Credit Extension, (A) the Total Revolving Credit Outstandings would exceed the Maximum Borrowing Amount, (B) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Revolving Credit Lender’s Revolving Credit Commitment, or (C) the Outstanding Amount of all Letter of Credit Obligations would exceed the Letter of Credit Sublimit. Each request by the Borrower Agent for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower Agent that the Letter of Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementBorrowers may, during the foregoing period, obtain Letters of Credit to incur replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The Letter of Credit Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur (i) as to standby Letters of Credit, more than twelve months after the date of issuance or last renewal, and (ii) as to documentary/commercial Letters of Credit, later than 270 days after the date of issuance thereof, unless in each case the Administrative Agent has approved such expiry date in its discretion;
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless Cash Collateralized on and after the Letter of Credit Expiration Date or the Administrative Agent has approved such expiry date in its discretion;
(iii) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from time issuing such Letter of Credit or any Law applicable to time 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 written request the Letter of Borrower Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which request shall include an application in form and detail satisfactory to Agentthe Letter of Credit Issuer is not otherwise compensated hereunder) not less than five in effect on the Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(5B) Business Days prior to the proposed issuance of such Letter of Credit, Credit would violate one or more policies of the Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that Issuer and the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant Issuer has provided the Borrower Agent evidence reasonably satisfactory to this paragraph at any one time outstanding the Borrower Agent demonstrating such violation(s);
(whether or not then due and payableC) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit is in an initial amount less than $10,000.
(iv) The Letter of Credit Issuer shall have an expiry date which is later than not amend any Letter of Credit if the earlier 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.
(yv) one year following the date The Letter of issuance thereof and (z) the Commitment Termination Date. Lenders Credit Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of amend any Letter of Credit having an expiry date which is later than if (A) the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable Issuer would have no obligation at such time to Agent, Lenders and Borrower. In addition, all Letters issue such Letter of Credit and related guaranties which are in its amended form under the subject terms hereof, or (B) the beneficiary of such Letter of Credit Obligations must be in form and substance satisfactory does not accept the proposed amendment to Agent, in its sole discretionsuch Letter of Credit.
(bvi) In the event that Agent or any other Lender shall make any payment on or pursuant to any The Letter of Credit Obligation, such payment Issuer shall then be deemed automatically to constitute a act on behalf of the Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter any Letters of Credit Obligations shall be irrevocable issued by it and not subject to counterclaimthe documents associated therewith, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article X with respect to any Lender, acts taken or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under omissions suffered by the Letter of Credit proving Issuer in connection with Letters of Credit issued by it or proposed to be forged, fraudulent, invalid or insufficient issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) Article X included the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit ObligationIssuer with respect to such acts or omissions, whether or not then due and payable, shall for any reason be outstanding on (B) as additionally provided herein with respect to the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashIssuer.
Appears in 1 contract
Samples: Credit Agreement (Ferroglobe PLC)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX Subject to the terms and conditions set forth herein, (i) each L/C HERETOIssuer agrees, BORROWER SHALL HAVE THE RIGHT TO REQUESTin reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.05, AND AGENT AND LENDERS AGREE TO INCUR(A) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
to issue standby Letters of Credit for the account, and upon the request, of the Borrower (aor jointly for the account of the Borrower and any Subsidiary) Lenders agreeand in support of obligations of the Borrower or one or more of its Subsidiaries (including (x) obligations in respect of and in lieu of deposits or security guarantees in the ordinary course of business, (y) to provide support for performance, payment or appeal bonds, indemnity obligations or other surety, including, without limitation, workers compensation insurance and (z) for such other general corporate purposes as the L/C Issuer may agree in its reasonable discretion), and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (c) below, and (B) to honor drawings under its Letters of Credit, and (ii) each Revolving Lender severally agrees to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawing thereunder in accordance with the provisions of subsection (e) below; provided that, immediately after each Letter of Credit is issued, (i) the aggregate amount of the L/C Obligations shall not exceed the L/C Sublimit, (ii) the Revolving Outstandings shall not exceed the Revolving Committed Amount and (iii) with respect to each individual Revolving Lender, the aggregate outstanding principal amount of such Revolving Lender’s Revolving Loans plus its Participation Interests in outstanding L/C Obligations plus its (other than the Swing Line Lender’s) Participation Interests in outstanding Swing Line Loans shall not exceed such Revolving Lender’s Revolving Commitment Percentage of the Revolving Committed Amount. Each request by the Borrower or a Subsidiary for the issuance or increase in the stated amount of a Letter of Credit shall be deemed to be a representation by the Borrower and such Subsidiary that the issuance or increase in the stated amount of such Letter of Credit complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions of hereof, the Agreement, Borrower’s ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than be fully revolving, and accordingly the earlier of Borrower may, during the period specified in clause (yi)(A) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or acceptabove, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all obtain Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute replace Letters of Credit that have expired or that have been drawn upon and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashreimbursed.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) Lenders agree, subject Subject to and upon the terms and conditions of the Agreementherein set forth, to incur at any time and from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed L/C Maturity Date, 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 Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and/or 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. Each of the Existing Letters of Credit shall remain outstanding under this Agreement on the Fourth Restatement Effective Date as Letters of Credit.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) no Letter of Credit shall be issued the Stated Amount of which would cause (x) 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 or (y) the Revolving Credit Loans of any Lender plus, without duplication, the amount of Swingline Loans outstanding that are held by such Lender and the face amount of Letters of Credit outstanding at such time issued by such Lender to exceed such Lender’s Revolving Credit Commitment; (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; (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 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 14.1; (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 Obligations Outstandings at such time in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Credit previously issued by such Letter of Credit Obligations incurred 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 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) 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 Lenders pursuant the Borrower, the Letter of Credit Issuer or any other Person.
(e) The Letter of Credit Issuer shall not be under any obligation to this paragraph at issue any one time outstanding 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 then due 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 Fourth Restatement Effective Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Fourth Restatement Effective Date and payable) shall not exceed which the lesser Letter of (i) Twelve Million Dollars ($12,000,000) and Credit Issuer in good xxxxx xxxxx material to it;
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no issuance of such Letter of Credit shall have 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 expiry date which is later initial Stated Amount less than the earlier Dollar Equivalent of $100,000, in the case of a commercial Letter of Credit, or $10,000, in the case of a standby Letter of Credit;
(yiv) one year following 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 issuance thereof and such requested Letter of Credit issue letters of credit in the requested currency;
(zvi) such Letter of Credit contains any provisions for automatic reinstatement of the Commitment Termination Date. Lenders 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 incur Letter of Credit Obligations in respect of amend any Letter of Credit having an expiry date which is later than if (A) the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable Issuer would have no obligation at such time to Agent, Lenders and Borrower. In addition, all Letters issue such Letter of Credit and related guaranties which are in its amended form under the subject terms hereof, or (B) the beneficiary of such Letter of Credit Obligations must be in form and substance satisfactory does not accept the proposed amendment to Agent, in its sole discretionsuch Letter of Credit.
(bh) In the event that Agent or any other Lender shall make any payment on or pursuant to any The Letter of Credit Obligation, such payment Issuer shall then be deemed automatically to constitute a act on behalf of the Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter any Letters of Credit Obligations shall be irrevocable issued by it and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever the documents associated therewith and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any Lender, acts taken or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under omissions suffered by the Letter of Credit proving Issuer in connection with Letters of Credit issued by it or proposed to be forged, fraudulent, invalid or insufficient issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) Section 13 included the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit ObligationIssuer with respect to such acts or omissions, whether or not then due and payable, shall for any reason be outstanding on (B) as additionally provided herein with respect to the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashIssuer.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer severally agrees, in reliance upon the agreements of the other Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Total Outstandings would exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans would exceed such Lender's Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementBorrower may, during the foregoing period, obtain Letters of Credit to incur replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from time issuing such Letter of Credit, or any Law applicable to time such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon written request such L/C Issuer with respect to such Letter of Borrower Credit any restriction, reserve or capital requirement (for which request shall include an application in form and detail satisfactory to Agentsuch L/C Issuer is not otherwise compensated hereunder) not less in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;
(B) xxxxxxx xx Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than five twelve months after the date of issuance or last renewal, unless the Required Lenders have approved such expiry date;
(5C) Business Days prior to the proposed expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit, Credit would violate one or more policies of such L/C Issuer; or
(E) such Letter of Credit Obligations is in respect an initial amount less than $100,000, or is to be denominated in a currency other than Dollars.
(iii) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashAuto-
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) On the terms and subject to the conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Lenders agreeset forth in this Section 2.02, (1) from time to time on any Business Day during the period from the Closing Date until 30 days prior to the Maturity Date, to issue Letters of Credit in Dollars for the account of the Borrower, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in, any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations would exceed the Total Commitment on such date, (y) the aggregate Effective Amount of the Revolving Loans of any Lender, plus such Lender’s Proportionate Share of the Effective Amount of all L/C Obligations, plus such Lender’s Proportionate Share of the Effective Amount of all Swing Line Loans would exceed such Lender’s Commitment, or (z) the Effective Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Prior Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof, including without limitation Section 8.14.
(ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Requirement of Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense (other than an income tax) which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to Section 2.02(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Maturity Date, unless all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer; or
(E) such Letter of Credit is denominated in a currency other than Dollars.
(iii) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit; Evergreen Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 12:00 noon, at least three Business Days (or such later date and time as the L/C Issuer may agree in a particular instance in its sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which date shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which date shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by the L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions of hereof, the AgreementL/C Issuer shall, to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to on the proposed issuance of such Letter of Creditrequested date, issue a Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that for the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination account of the bank Borrower or other legally authorized Person (including Agent or Lenders) which shall issue or acceptenter into the applicable amendment, as the case may be, any in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a participation in such Letter of Credit contemplated and any related L/C Obligations and L/C Borrowings in an amount equal to the product of such Lender’s Proportionate Share times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer shall agree to issue a Letter of Credit that has automatic renewal provisions (each, an "Evergreen Letter of Credit"); provided that any such Evergreen Letter of Credit must permit the L/C Issuer to prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by this paragraph giving notice to the beneficiary thereof and the Borrower on a date (athe "Nonrenewal Notice Date") that is not later than 30 days prior to the expiration of such twelve-month period. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such renewal. Once an Evergreen Letter of Credit has been issued, the Lenders shall be reasonably acceptable deemed to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are have authorized (but may not require) the subject L/C Issuer to permit the renewal of such Letter of Credit Obligations must at any time to a date not later than the Maturity Date; provided, however, that the L/C Issuer shall not permit any such renewal if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof, or (B) it has received notice (which may be by telephone or in form and substance satisfactory writing) on or before the Business Day immediately preceding the Nonrenewal Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such renewal or (2) from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in its sole discretionSection 3.02 is not then satisfied. Notwithstanding anything to the contrary contained herein, the L/C Issuer shall have no obligation to permit the renewal of any Evergreen Letter of Credit at any time.
(biv) In the event that Agent or any other Lender shall make any payment on or pursuant to Promptly after its delivery of any Letter of Credit Obligationor any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon any drawing under any Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative Agent of the amount to be paid by the L/C Issuer as a result of such drawing and the date on which payment is to be made by the L/C Issuer to the beneficiary of such Letter of Credit in respect of such drawing. Not later than 12:00 noon, on the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an "Honor Date"), the Borrower shall then reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing. If the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the "Unreimbursed Amount"), and such Lender’s Proportionate Share thereof. In such event, the Borrower shall be deemed automatically to constitute have requested a Revolving Credit Advance under SECTION 1.2(A) Loan Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.01 for the principal amount of Base Rate Loans, but subject to the amount of the Agreement, regardless unutilized portion of whether a Default or Event of Default shall have occurred the Total Commitment and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2Section 3.02 (other than the delivery of a Notice of Revolving Loan Borrowing). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.02(c)(i) may be given by telephone if immediately confirmed in writing; provided, that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Lender (including the Lender acting as L/C Issuer) shall upon any notice pursuant to Section 2.02(c)(i) make funds available to the Administrative Agent for the account of the L/C Issuer at the Administrative Agent’s Office in an amount equal to its Proportionate Share of the Unreimbursed Amount not later than 2:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.02(c)(iii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Loan Borrowing because the conditions set forth in Section 3.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest as provided in SECTION 1.8 at the rate applicable to Revolving Loans upon the occurrence and during the continuance of an Event of Default. In such event, each Lender’s payment to the Administrative Agent for the account of the Agreement, and each Lender L/C Issuer pursuant to Section 2.02(c)(ii) shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or deemed payment by Agent under or in respect of a its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.02.
(iv) Until each Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.02(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit Credit, interest in respect of such Lender’s Proportionate Share of such amount shall be solely for the account of the L/C Issuer.
(v) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.02(c), shall be absolute and unconditional and shall not relieve be affected by any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect theretocircumstance, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
including (iA) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, counterclaim, recoupment, defense or other right which Borrower such Lender may have at against the L/C Issuer, the Borrower or any time against other Person for any reason whatsoever; (B) the occurrence or continuance of a beneficiary named in a Letter Default or Event of CreditDefault, or (C) any transferee other occurrence, event or condition, whether or not similar to any of the foregoing. Any such reimbursement shall not relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any Letter of Credit (or any Person for whom any such transferee may be acting), payment made by the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, L/C Issuer under any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Defaulttogether with interest as provided herein.
(cvi) In If any Lender fails to make available to the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Administrative Agent for the benefit account of the Lenders cash L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.02(c) by the time specified in an Section 2.02(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to one hundred five percent (105%) the Federal Funds Rate from time to time in effect. A certificate of the maximum amount then available L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be drawn under the applicable Letter(s) of Credit. Such cashconclusive absent manifest error.
Appears in 1 contract
Samples: Credit Agreement
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX Subject to the terms and conditions set forth herein, (i) each Issuing Bank agrees, in reliance upon the agreements of the other Revolving Lenders set forth in Section 2.03, (A) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to make L/C HERETOCredit Extensions for the account of the Borrower or its Subsidiaries, BORROWER SHALL HAVE THE RIGHT TO REQUESTand to amend or extend Letters of Credit previously issued by it, AND AGENT AND LENDERS AGREE TO INCURin accordance with Section 2.03(a)(i) and (ii), THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
and (aB) to honor drawings under the Letters of Credit issued by it; and (ii) the Revolving Lenders agreeseverally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any L/C Borrowings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the Revolving Facility and (y) the aggregate Outstanding Amount of the Revolving Advances of any Revolving Lender, plus such Revolving Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, shall not exceed such Revolving Lender's Revolving Commitment. Each request by the Borrower for the issuance of, or an amendment to increase the amount of, any Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions of hereof, the Agreement, Borrower's ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than be fully revolving, and accordingly the earlier of (y) one year following Borrower may, during the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or acceptforegoing period, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all obtain Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute replace Letters of Credit that have expired or that have been drawn upon and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashreimbursed.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees (subject, in the case of an L/C Issuer other than Bank of America, to any maximum Letter of Credit commitment amount applicable to such L/C Issuer), in reliance upon the agreements of the other Lenders agreeset forth in this Section 2.4, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue a requested Letter of Credit for the account of the Borrower, and to amend or renew a Letter of Credit previously issued by such L/C Issuer, in accordance with subsection (b) below, and (2) to honor drafts under any Letter of Credit such L/C Issuer has issued; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit, to the extent that, as of the date of such L/C Credit Extension, (x) the sum of the aggregate principal amount of outstanding Revolving Loans plus the aggregate principal amount of outstanding Swingline Loans plus the L/C Obligations outstanding shall exceed the Revolving Committed Amount or (y) the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the AgreementBorrower may, during the foregoing period, obtain Letters of Credit to incur replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from time and after the Closing Date shall be subject to time upon written and governed by the terms and conditions hereof. Notwithstanding the foregoing, the Borrower may not request any Letters of Borrower Credit hereunder while a Change of Control Standstill Period shall be in effect pursuant to Section 3.4(e) hereof.
(which request ii) No L/C Issuer shall include an application in form and detail satisfactory be under any obligation to Agentissue any Letter of Credit if:
(A) not less than five (5) Business Days prior any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to the proposed issuance of enjoin or restrain such L/C Issuer from issuing such Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant or any law applicable to this paragraph at such L/C Issuer or any one time outstanding request or directive (whether or not then due and payablehaving the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall not exceed prohibit, or request that such L/C Issuer refrain from, the lesser issuance of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no letters of credit generally or such Letter of Credit in particular or shall have an impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) the expiry date which is later of such requested Letter of Credit would occur more than the earlier of eighteen (y18) one year following months after the date of issuance thereof and or last renewal, unless the Required Lenders have approved such expiry date;
(zC) the Commitment Termination Date. Lenders shall be under no obligation to incur expiry date of such requested Letter of Credit Obligations in respect of any would occur after the Letter of Credit having an Expiration Date, unless all the Lenders have approved such expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable pursuant to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be additional documentation in form and substance satisfactory to Agentthe Administrative Agent and the applicable L/C Issuer);
(D) such Letter of Credit is in a face amount less than $100,000, in the case of a commercial Letter of Credit, or $100,000, in the case of a standby Letter of Credit, or is to be denominated in a currency other than Dollars;
(E) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally (it being understood that each L/C Issuer acknowledges that (x) as of the Closing Date, it is not aware of any such policies that would make it impossible for the Borrower to have Letters of Credit issued hereunder for use in the ordinary course of the Borrower’s business and in accordance with its past practices and (y) it will not implement any such policies solely with the intent to deprive the Borrower of having Letters of Credit issued hereunder for use in the ordinary course of the Borrower’s business and in accordance with its past practices); or
(F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, with the Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 3.19(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(biii) In the event that Agent or No L/C Issuer shall be under any other Lender shall make any payment on or pursuant obligation to amend any Letter of Credit Obligation, if (A) such payment shall then be deemed automatically L/C Issuer would have no obligation at such time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof, or (B) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and does not subject accept the proposed amendment to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Samples: Credit Agreement (Autozone Inc)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(a) The Letter of Credit Commitment. (i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Borrower (provided, that any Letter of Credit may be for the benefit of any Subsidiary of the Borrower) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Lender’s Revolving Credit Commitment or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions of hereof, the Agreement, Borrower’s ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than be fully revolving, and accordingly the earlier of (y) one year following Borrower may, during the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or acceptforegoing period, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all obtain Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute replace Letters of Credit that have expired or that have been drawn upon and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashreimbursed.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein,
(A) each L/C Issuer agrees, in reliance upon (among other things) the agreements of the other Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or an Alternative Currency for the account of any Borrower Party (provided that the each Borrower hereby irrevocably agrees to reimburse the applicable L/C Issuer for amounts drawn on any Letters of Credit issued for the account of any Borrower Party on a joint and several basis with such Restricted Subsidiary and shall be a co-applicant for each such Letter of Credit issued for the account of a Restricted Subsidiary, but in no event shall any Controlled Non-U.S. Subsidiary, any FSHCO or any direct or indirect Subsidiary of a Controlled Non-U.S. Subsidiary or FSHCO be responsible for any amounts drawn on any Letters of Credit issued for the account of such Borrower or a Subsidiary) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(c), and (2) to honor drawings under the Letters of Credit; and
(B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of any Borrower Party; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit, if as of the date of such L/C Credit Extension (w) the Total Revolving Credit Outstandings in respect of any Revolving Tranche would exceed the Aggregate Commitment under such Revolving Tranche (x) the Total Revolving Credit Outstandings would exceed the Aggregate Commitment under the Revolving Credit Facility, (y) the aggregate Pro Rata Share of the Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations would exceed such Lender’s Revolving Credit Commitment or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit; provided, further, that no L/C Issuer identified on Schedule 1.01(f) shall have any obligation to make an L/C Credit Extension if, after giving effect thereto, the L/C Obligations in respect of Letters of Credit issued by such L/C Issuer would exceed the amount set forth opposite such L/C Issuer’s name on Schedule 1.01(f). Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or been terminated or that have been drawn upon and reimbursed. All Letters of Credit shall be denominated in Dollars or an Alternative Currency; provided that each L/C Issuer’s obligation to issue Letters of Credit in any Alternative Currency shall be subject to the currency limitations set forth in the definition of “L/C Issuer”.
(ii) No L/C Issuer shall be under any obligation to issue any Letter of Credit (and, in the case of clause (B) and (C) unless the applicable requisite consents specified therein have been obtained, no L/C Issuer shall issue any Letter of Credit) if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of Law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which, in each case, such L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to Section 2.03(c)(iii), the expiry date of such requested Letter of Credit would occur after the earlier of (x) three Business Days prior to the scheduled Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day) and (y) more than 12 months after the date of issuance or the then-current expiry date, unless the applicable L/C Issuer, in its sole discretion, have approved such expiry date.
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (i) all the Revolving Credit Lenders and the applicable L/C Issuer have approved such expiry date and/or (ii) the applicable L/C Issuer has approved such expiry date and such requested Letter of Credit has been Cash Collateralized by the applicant requesting such Letter of Credit in accordance with Section 2.16 at least three Business Days prior to the Letter of Credit Expiration Date;
(D) the issuance of such Letter of Credit would violate one or more generally applicable policies of such L/C Issuer in place at the time of such request;
(E) such Letter of Credit is in an initial stated amount of less than $5,000 (or the equivalent Dollar Amount) or such lesser amount as is acceptable to the applicable L/C Issuer in its sole discretion;
(F) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(G) the proceeds of any Letter of Credit would be made available directly or knowingly indirectly by any Loan Party to any Person (i) to fund any activity or business of or with any Sanctioned Person, or any dealing or investment in or with any country or territory that, at the time of such funding, is a Sanctioned Country, in each case, in violation of applicable Sanctions Laws and Regulations or (ii) in any manner that would result in a violation of any applicable Sanctions Laws and Regulations by any party to this Agreement;
(H) such L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency; or
(I) any Revolving Credit Lender is at that time a Defaulting Lender, unless the applicable L/C Issuer has entered into arrangements, including reallocation of the Defaulting Lender’s Pro Rata Share of the outstanding L/C Obligations pursuant to Section 2.17(a)(iv) or the delivery of Cash Collateral in accordance with Section 2.16 with the Borrowers or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure under such Tranche.
(iii) No L/C Issuer shall be under any obligation to amend any Letter of Credit if such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof.
(iv) Each L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included each L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to each L/C Issuer.
(b) The foregoing benefits and immunities shall not excuse any L/C Issuer from liability to the Borrowers to the extent of any direct damages (as opposed to indirect, special, consequential, punitive or exemplary damages claims which are hereby waived by the Borrowers to the extent permitted by applicable law) suffered by the Borrowers that are caused by such L/C Issuer’s gross negligence, bad faith or willful misconduct as determined by a court of competent jurisdiction in a final and nonappealable judgment.
(c) Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the applicable Borrower delivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of an irrevocable Letter of Credit Application, including agreed-upon draft language for such Letter of Credit reasonably acceptable to the applicable L/C Issuer (it being understood that such draft language for each such Letter of Credit must be in English or, if agreed to in the sole discretion of the applicable L/C Issuer, accompanied by an English translation certified by the applicable Borrower to be a true and correct English translation), appropriately completed and signed by a Responsible Officer of the applicable Borrower. Such Letter of Credit Application must be received by the applicable L/C Issuer and the Administrative Agent not later than 2:00 p.m. (New York City time) at least five Business Days (or such shorter period as such L/C Issuer and the Administrative Agent may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day not later than 30 days prior to the Maturity Date of the Revolving Credit Facility, unless the Administrative Agent and the applicable L/C Issuer otherwise agree); (B) the amount thereof and the currency in which such Letter of Credit is to be denominated; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate or other documents to be presented by such beneficiary in case of any drawing thereunder; (G) the Person for whose account the requested Letter of Credit is to be issued (which must be a Borrower Party); and (H) such other matters as the applicable L/C Issuer may reasonably request. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer: (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the applicable L/C Issuer may reasonably request.
(ii) Promptly following delivery of any Letter of Credit Application to the applicable L/C Issuer, the applicable L/C Issuer will confirm with the Administrative Agent that the Administrative Agent has received a copy of such Letter of Credit Application and, if the Administrative Agent has not received a copy of such Letter of Credit Application, then the applicable L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by such L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of any Borrower Party (as designated in the Letter of Credit Application) or enter into the applicable amendment, as the case may be. Immediately upon the issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer a risk participation in such Letter of Credit in an amount equal to such Lender’s Pro Rata Share of the AgreementRevolving Credit Facility multiplied by the amount of such Letter of Credit.
(iii) If the applicable Borrower so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole and absolute discretion, agree to incur from time issue a Letter of Credit that has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal Letter of Credit must permit such L/C Issuer to time upon written request prevent any such renewal at least once in each 12-month period (commencing with the date of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter of Credit Obligations ) by giving prior notice to the beneficiary thereof not later than a day in respect of Letters of Credit; PROVIDED, HOWEVER, that each such 12-month period to be agreed upon at the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit is issued. Unless otherwise directed by the applicable L/C Issuer, the applicable Borrower shall not be required to make a specific request to such L/C Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the Revolving Credit Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the renewal of such Letter of Credit at any time to an expiry date which is not later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations Expiration Date; provided, however, that such L/C Issuer shall not permit any such renewal if such L/C Issuer has determined that it would have no obligation at such time to issue such Letter of Credit in respect its renewed form under the terms hereof (by reason of the provisions of Section 2.03(a)(ii) or otherwise).
(iv) Promptly upon request thereof by the applicable Borrower or the Administrative Agent and after its delivery of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any amendment to a Letter of Credit contemplated by this paragraph to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also (aA) shall be reasonably acceptable deliver to Agentthe applicable Borrower, Lenders the applicable Borrower Party a true and Borrower. In addition, all Letters of Credit and related guaranties which are the subject complete copy of such Letter of Credit Obligations must be in form or amendment and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any pertinent details of such Letter of Credit Obligation, such payment shall then be deemed automatically or amendment to constitute a the Administrative Agent and (B) the Administrative Agent in turn will notify each Revolving Credit Advance under SECTION 1.2(A) Lender of such issuance or amendment and the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or’s Pro Rata Share therein.
(v) Notwithstanding anything to the occurrence contrary set forth above, the issuance of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit by any L/C Issuer under this Agreement shall be subject to such reasonable additional letter of credit issuance procedures and releases requirements as may be required by such L/C Issuer’s internal letter of all Letter of Credit Obligations in form credit issuance policies and substance satisfactory to Agentprocedures, in its sole discretion, as in effect at the time of such issuance, including requirements with respect to the prior receipt by such L/C Issuer of customary “know your customer” information regarding a prospective account party or (ii) pay to Agent for the benefit applicant that is not a Borrower hereunder, as well as regarding any beneficiaries of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) a requested Letter of Credit. Such cashAdditionally, if (a) the beneficiary of a Letter of Credit issued hereunder is an issuer of a letter of credit not governed by this Agreement for the account of any Borrower Party (an “Other LC”), and (b) such Letter of Credit is issued to provide credit support for such Other LC, no amendments may be made to such Other LC without the consent of the applicable L/C Issuer hereunder.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Lenders agreeset forth in this Section 2.04, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, and to amend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit as required under applicable law; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in, any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Total Outstandings would exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans would exceed such Lender's Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions of hereof, the Agreement, Borrower's ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether that have expired or not then due that have been drawn upon and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and reimbursed.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders The L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having an expiry date which is later than the Commitment Termination Date. It is understood force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the determination L/C Issuer refrain from, the issuance of the bank letters of credit generally or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon the L/C Issuer with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and related guaranties which are the subject L/C Issuer in good xxxxx xxxxx material to it;
(B) the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance, unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit Obligations must be would violate one or more policies of the L/C Issuer; or
(E) such Letter of Credit is in form and substance satisfactory to Agenta face amount less than $50,000, in its sole discretionthe case of a commercial Letter of Credit, or $25,000, in the case of a standby Letter of Credit, or is to be denominated in a currency other than Dollars.
(biii) In the event that Agent or any other Lender The L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligation, if (A) the L/C Issuer would have no obligation at such payment shall then be deemed automatically time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof, or (B) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and does not subject accept the proposed amendment to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Lenders agreeSubject to the terms and conditions set forth herein, (A) Lender agrees, (1) from time to time on any Business Day during the period from the Closing Date until the L/C Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Commitment, (y) the Outstanding Amount of the L/C Obligations shall not exceed the L/C Sublimit, and (z) the Total Outstandings shall not exceed the Incurrence Borrowing Base. Each request by Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions of the Agreementhereof, Borrower’s ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly Borrower may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether that have expired or not then due that have been drawn upon and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and reimbursed.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders Lender shall be under no obligation to incur issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(ii), unless otherwise specifically agreed by Lender, the expiry date of such requested Letter of Credit Obligations in respect would occur more than twelve months after the date of any issuance or last extension of such Letter of Credit; or
(B) unless otherwise specifically agreed by Lender, the expiry date of such requested Letter of Credit having an expiry date which is would occur later than 365 days after the Commitment Termination Maturity Date. It is understood ;
(C) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain Lender from issuing such Letter of Credit, or any Law applicable to Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over Lender shall prohibit, or request that Lender refrain from, the determination issuance of the bank letters of credit generally or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon Lender with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit any restriction, reserve or capital requirement (for which Lender is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon Lender any unreimbursed loss, cost or expense which was not applicable on the Closing Date and related guaranties which are Lender in good xxxxx xxxxx material to it;
(D) the subject issuance of such Letter of Credit Obligations must would violate one or more policies of Lender applicable to letters of credit generally;
(E) such Letter of Credit is in an initial stated amount less than $25,000;
(F) such Letter of Credit is to be denominated in form and substance satisfactory a currency other than Dollars or an Alternative Currency; or
(G) unless specifically agreed to Agentby Lender, in its sole discretionsuch Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(biii) In the event that Agent or any other Lender shall make any payment on or pursuant not be obligated to amend any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(Aif (A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall would not be obligated at such time to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof, or (B) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and does not subject accept the proposed amendment to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Samples: Credit Agreement (Gen Probe Inc)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX During the Commitment Period, (i) the L/C HERETOIssuer, BORROWER SHALL HAVE THE RIGHT TO REQUESTin reliance upon the commitments of the Lenders set forth herein, AND AGENT AND LENDERS AGREE TO INCURagrees (A) to issue Letters of Credit for the account of Borrower on any Business Day, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
(aB) to amend or renew Letters of Credit previously issued hereunder, and (C) to honor drafts under Letters of Credit; and (ii) the Lenders agreeseverally agree to purchase from the L/C Issuer a participation interest in the Letters of Credit issued hereunder in an amount equal to such Lender’s Revolving Commitment Percentage thereof; provided that (A) the aggregate principal amount of L/C Obligations shall not exceed an amount equal to $20,000,000, subject the “L/C Committed Amount”), (B) with regard to the Lenders collectively, the aggregate principal amount of Revolving Obligations shall not exceed the Aggregate Revolving Committed Amount, and (C) with regard to each Lender individually, such Lender’s Revolving Commitment Percentage of Revolving Obligations shall not exceed its respective Revolving Committed Amount. Subject to the terms and conditions of hereof, the Agreement, Borrower’s ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter of Credit Obligations in respect of obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than be fully revolving, and accordingly the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case Borrower may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all obtain Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute replace Letters of Credit that have expired or that have been drawn upon and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashreimbursed.
Appears in 1 contract
Samples: Credit Agreement (Griffin-American Healthcare REIT III, Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set out herein, (A) Agent agrees, in reliance upon the agreements of the other Lenders set out in this Section 2.03: (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of Borrower, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) Lenders agreeseverally agree to participate in Letters of Credit issued for the account of Borrower; provided that Agent shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in, any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Total Outstandings would exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, would exceed such Lender’s Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions of the Agreementhereof, Borrower’s ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly Borrower may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether that have expired or not then due that have been drawn upon and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and reimbursed.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders Agent shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination if:
(A) any order, judgment or decree of the bank any Governmental Authority or other legally authorized Person (including arbitrator shall by its terms purport to enjoin or restrain Agent from issuing such Letter of Credit, or any Law applicable to Agent or Lendersany request or directive (whether or not having the force of law) which from any Governmental Authority with jurisdiction over Agent shall issue prohibit, or acceptrequest that Agent refrain from, as the case may be, any issuance of letters of credit generally or such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon Agent with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit any restriction, reserve or capital requirement (for which Agent is not otherwise compensated under this Agreement) not in effect on the Closing Date, or shall impose upon Agent any unreimbursed loss, cost or expense which was not applicable on the Closing Date and related guaranties which are Agent in good xxxxx xxxxx material to it;
(B) the subject expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, (provided that such Letter of Credit may include provisions for automatic renewal), unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit Obligations must be would violate one or more policies of Agent; or
(E) such Letter of Credit is in form and substance satisfactory to Agentan initial amount less than $100,000, in its sole discretionthe case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit, or is to be denominated in a currency other than Dollars.
(biii) In the event that Agent or any other Lender shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligation, if (A) Agent would have no obligation at such payment shall then be deemed automatically time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof, or (B) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and does not subject accept the proposed amendment to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
Samples: Secured Reducing Credit Agreement (Gulfport Energy Corp)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the Revolving Credit Exposure of each Revolving Credit Lender shall not exceed such Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence and the immediately succeeding sentence. The Borrower agrees that it will not request, and the L/C Issuer shall have no obligation to 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 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. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of the Agreementrequested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (x) all the Revolving Credit Lenders and the L/C Issuer have approved such expiry date or (y) such Letter of Credit is cash collateralized on terms and pursuant to incur from time to time upon written request of Borrower (which request shall include an application in form and detail arrangements satisfactory to Agentthe L/C Issuer.
(iii) The L/C Issuer shall not less than five be under any obligation to issue any Letter of Credit if:
(5A) Business Days prior any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the proposed issuance of such L/C Issuer from issuing the Letter of Credit, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that or any Law applicable to the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at L/C Issuer or any one time outstanding request or directive (whether or not then due and payablehaving the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall not exceed prohibit, or request that the lesser L/C Issuer refrain from, the issuance of (i) Twelve Million Dollars ($12,000,000) and (ii) letters of credit generally or the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit in particular or shall have an expiry date which is later than impose upon the earlier of (y) one year following L/C Issuer with respect to the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in respect effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of any the Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination would violate one or more policies of the bank or other legally authorized Person L/C Issuer applicable to letters of credit generally;
(including C) except as otherwise agreed by the Administrative Agent or Lenders) which shall issue or acceptand the L/C Issuer, as the case may be, any Letter of Credit contemplated is in an initial stated amount less than $100,000;
(D) except as otherwise agreed by this paragraph the Administrative Agent and such L/C Issuer, the Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;
(aE) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all such L/C Issuer does not as of the issuance date of the requested Letter of Credit issue Letters of Credit and related guaranties which are in the subject of such requested currency;
(F) the Letter of Credit Obligations must be in form and substance contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(G) any Revolving Credit Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to Agentthe L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(biv) In the event that Agent or any other Lender The L/C Issuer shall make any payment on or pursuant to not amend any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
if (i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(iiA) the existence of any claim, set-off, defense or other right which Borrower may have L/C Issuer would not be permitted at any such time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, to issue the Letter of Credit issuer, any Lender, in its amended form under the terms hereof or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and B) the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving does not accept the proposed amendment to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment Letter of any security for the performance or observance of any of the terms of any of the Loan Documents; orCredit.
(v) The L/C Issuer shall act on behalf of the occurrence of Revolving Credit Lenders with respect to any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit issued by it and releases the documents associated therewith, and the L/C Issuer shall have all of all Letter the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, issued by it or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available proposed to be drawn under issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the applicable Letter(sterm “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) of Credit. Such cashas additionally provided herein with respect to the L/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (TUTOR PERINI Corp)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein (including, with respect to the Designated L/C Issuer, the last sentence of this Section 2.04(a)(i)), (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Lenders agreeset forth in this Section 2.04, (1) from time to time on any Business Day during the period from April 24, 2002 until the Letter of Credit Expiration Date, to issue Letters of Credit in Dollars for the account of the Borrower, and to renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit previously issued by it; and (B) the Revolving Lenders severally agree to risk participate in Letters of Credit issued for the account of the Borrower; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Revolving Lender shall be obligated to risk participate in, any Letter of Credit if as of the date of such L/C Credit Extension, (x) the aggregate Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C Obligations would exceed the Aggregate Revolving Credit Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Revolving Lender, plus such Revolving Lender's Pro Rata Revolving Share of the Outstanding Amount of all L/C Obligations, plus such Revolving Lender's Pro Rata Revolving Share of the Outstanding Amount of all Swing Line Loans, would exceed such Revolving Lender's Revolving Credit Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. Notwithstanding the foregoing, however, in no event shall the Designated L/C Issuer be obligated to make any L/C Credit Extension with respect to any Letter of Credit if after the making of such L/C Credit Extension the Outstanding Amount of the AgreementL/C Obligations of the Designated L/C Issuer with respect to Letters of Credit issued by it would exceed the Designated L/C Issuer Amount.
(ii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to incur enjoin or restrain such L/C Issuer from time issuing such Letter of Credit, or any Law applicable to time such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon written request such L/C Issuer with respect to such Letter of Borrower Credit any restriction, reserve or capital requirement (for which request shall include an application in form and detail satisfactory to Agentsuch L/C Issuer is not otherwise compensated hereunder) not less in effect on April 24, 2002, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on April 24, 2002 and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to Section 2.04(b)(iii), the expiry date of such requested Letter of Credit would occur more than five twelve months after the date of issuance or last renewal, unless the Required Revolving Lenders have approved such expiry date;
(5C) Business Days prior to the proposed expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Lenders have approved such expiry date; or
(D) the issuance of such Letter of Credit, Credit would violate one or more policies of such L/C Issuer.
(iii) No L/C Issuer shall be under any obligation to amend any Letter of Credit Obligations if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in respect 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.
(b) Procedures for Issuance and Amendment of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashAuto-
Appears in 1 contract
Samples: Credit Agreement (Jarden Corp)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX 2.2.1 L/C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTHCommitments.
(a) Lenders agree, subject Subject to the terms and conditions hereof, the Issuing Lender, in reliance on the agreements of the Agreementother Lenders set forth in Section 2.2.4(a), agrees to incur issue Letters of Credit for the account of the Borrower or any of its Subsidiaries on any Business Day during the Commitment Period in such form as may be approved from time to time upon written request by the Issuing Lender; provided that the Issuing Lender shall have no obligation to issue any Letter of Borrower Credit if, after giving effect to such issuance, (which request shall include an application in form and detail satisfactory to Agenti) not the L/C Obligations would exceed $100,000,000, (ii) the L/C Exposure of any Issuing Lender would exceed such Issuing Lender’s L/C Commitment, (iii) the Extensions of Credit of any Lender would exceed such Lender’s Commitment, or (iv) the aggregate amount of the Available Commitments would be less than five zero. The parties hereto agree that the Existing Letters of Credit will automatically, without any further action on the part of any Person, be deemed to be Letters of Credit hereunder issued hereunder on the Closing Date for the account of the Borrower. Without limiting the foregoing (5i) Business Days each such Existing Letter of Credit shall be included in the calculation of the L/C Exposure, (ii) all liabilities of the Borrower and the other Loan Parties with respect to such Existing Letters of Credit shall constitute Obligations and (iii) each Lender shall have reimbursement obligations with respect to such Existing Letters of Credit as provided in Section 2.2.4.
(b) Each Letter of Credit shall (i) be denominated in U.S. dollars and (ii) expire no later than the Termination Date. Notwithstanding the foregoing, any Letter of Credit issued hereunder may, in the sole discretion of the Issuing Lender, expire after the Termination Date but on or before the date that is 90 days after the Termination Date, provided that the Borrower shall provide cash collateral in an amount equal to 102% of the L/C Obligations in respect of any such outstanding Letter of Credit to the Issuing Lender at least 30 days prior to the proposed issuance Termination Date, which such amount shall be (A) deposited by the Borrower in an account with and in the name of the Issuing Lender and (B) held by such Issuing Lender for the satisfaction of the Borrower’s reimbursement obligations in respect of such Letter of Credit until the expiration of such Letter of Credit, . Any Letter of Credit Obligations issued with an expiration date beyond the Termination Date shall, to the extent of any undrawn amount remaining thereunder on the Termination Date, cease to be a “Letter of Credit” outstanding under this Agreement for purposes of the Lenders’ obligations to participate in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit having an expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject of such Letter of Credit Obligations must be in form and substance satisfactory to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that The Issuing Lender shall not at any time be obligated to issue any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretionif such issuance would conflict with, or (ii) pay cause the Issuing Lender or any L/C Participant to Agent for the benefit exceed any limits imposed by, any applicable requirement of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashlaw.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Original Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Borrower (provided that any Letter of Credit may be for the benefit of any Subsidiary of the Borrower) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Revolving Credit Exposure of any Lender would exceed such Lender’s Revolving Credit Commitment or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions of hereof, the Agreement, Borrower’s ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether that have expired or not then due that have been drawn upon and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and reimbursed.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having an expiry date which is later than the Commitment Termination Date. It is understood force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the determination issuance of the bank letters of credit generally or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph (a) in particular or shall be reasonably acceptable impose upon such L/C Issuer with respect to Agent, Lenders and Borrower. In addition, all Letters such Letter of Credit and related guaranties any restriction, reserve or capital requirement (for which are such L/C Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit Obligations must be would violate any Laws binding upon such L/C Issuer;
(E) such Letter of Credit is in form and substance an initial amount less than $100,000; or
(F) any Revolving Credit Lender is a Defaulting Lender, unless the L/C Issuer has entered into arrangements reasonably satisfactory to Agentit and the Borrower to eliminate the L/C Issuer’s risk with respect to the participation in Letters of Credit by all such Defaulting Lenders, including by cash collateralizing, reallocating such Defaulting Lender’s participation in its sole discretionLetters of Credit to a Non-Defaulting Lender pursuant to Section 2.17(a), or obtaining a backstop letter of credit from an issuer reasonably satisfactory to the L/C Issuer to support, each such Defaulting Lender’s Pro Rata Share of any Unreimbursed Amount.
(biii) In the event that Agent or any other Lender An L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligation, if (A) such payment shall then be deemed automatically L/C Issuer would have no obligation at such time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof, or (B) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations does not accept the proposed amendment to such Letter of Credit.
(iv) On the Second Restatement Effective Date, the participations in any outstanding Letters of Credit shall be irrevocable reallocated so that after giving effect thereto the Extended Maturity Revolving Credit Lenders and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and the Original Maturity Revolving Credit Lenders shall be made share ratably in the Revolving Credit Exposures in accordance with the terms aggregate Revolving Credit Commitments (including both the Original Maturity Revolving Credit Commitments and conditions of this Agreement under all circumstancesthe Extended Maturity Revolving Credit Commitments from time to time in effect). Thereafter, including, without limitation, any until the Maturity Date of the following circumstances:
Original Maturity Revolving Credit Facility, the participations in any new Letters of Credit shall be allocated in accordance with the aggregate Revolving Credit Commitments (i) including both the Original Maturity Revolving Credit Commitments and the Extended Maturity Revolving Credit Commitments); provided that, notwithstanding the foregoing, participations in any lack new Letters of validity or enforceability of this Agreement or any Credit that have an expiry date after the Original Revolving Credit Maturity Date shall be allocated to the Extended Maturity Revolving Credit Lenders ratably in accordance with their Extended Maturity Revolving Credit Commitments. On the Maturity Date of the other Loan Documents;
(ii) Original Maturity Revolving Credit Facility, the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named participations in a Letter of Credit, any transferee of any Letter the outstanding Letters of Credit (or of the Original Maturity Revolving Credit Lenders shall be reallocated to the Extended Maturity Revolving Credit Lenders ratably in accordance with their Extended Maturity Revolving Credit Commitments but in any Person for whom any such transferee may be acting)case, only to the Agent, extent the Letter sum of the participations in the outstanding Letters of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of Original Maturity Revolving Credit Lenders and Extended Maturity Revolving Credit Lenders does not exceed the Loan Documents; ortotal Extended Maturity Revolving Credit Commitments.
(v) If the occurrence reallocation described in clause (iv) above cannot, or can only partially, be effected as a result of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligationlimitations set forth herein, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall within five Business Days following notice by the Administrative Agent, either (ix) obtain substitute cash collateralize such Original Maturity Revolving Credit Lender’s participations in the outstanding Letters of Credit and releases of all Letter (after giving effect to any partial reallocation pursuant to clause (iv) above) or (y) backstop such Original Maturity Revolving Credit Lender’s participations in the Letters of Credit Obligations in form and substance (after giving effect to any partial reallocation pursuant to clause (iv) above) with a letter of credit reasonably satisfactory to Agentthe L/C Issuer, in its sole discretioneach case, or (ii) pay to Agent for the benefit so long as any Letters of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cashCredit are outstanding.
Appears in 1 contract
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions expressly set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit at sight denominated in Dollars for the account of the Borrower or any Restricted Subsidiary of the Borrower and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Lender’s Revolving Credit Commitment or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the ability of the Agreement, Borrower and the Restricted Subsidiaries to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly the Borrower and the Restricted Subsidiaries may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether that have expired, terminated or not then due that have been drawn upon and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and reimbursed.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than 12 months after the date of issuance or last renewal unless (1) each Appropriate Lender and the L/C Issuer has approved of such expiration date or (2) the L/C Issuer thereof has approved of such expiration date and the Outstanding Amount of L/C Obligations in respect of any such requested Letter of Credit having an has been Cash Collateralized or backstopped in a manner reasonably satisfactory to such L/C Issuer;
(C) the expiry date which is later than the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, any such requested Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters would occur after the Letter of Credit and related guaranties which are Expiration Date, unless such Letter of Credit has been Cash Collateralized or backstopped in a manner reasonably satisfactory to such L/C Issuer;
(D) the subject issuance of such Letter of Credit Obligations must would violate any policies of such L/C Issuer applicable to letters of credit generally; it being understand and agreed that neither Credit Suisse AG, Cayman Islands Branch, nor any of its affiliates shall be in form and substance required to issue documentary or “trade” Letters of Credit (as opposed to “standby” Letters of Credit); and
(E) any Revolving Credit Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to Agent, such L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure as it may elect in its sole discretion.
(biii) In the event that Agent or any other Lender An L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligation, if (A) such payment shall then be deemed automatically L/C Issuer would have no obligation at such time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof, or (B) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and does not subject accept the proposed amendment to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;.
(iv) the surrender or impairment of any security for the performance or observance of any Each L/C Issuer shall act on behalf of the terms of Revolving Credit Lenders with respect to any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit issued by it and releases the documents associated therewith, and each L/C Issuer shall have all of all Letter the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, issued by it or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available proposed to be drawn under issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the applicable Letter(sterm “Administrative Agent” as used in Article IX included such L/C Issuer with respect to such acts or omissions, and (B) of Credit. Such cashas additionally provided herein with respect to such L/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (Blucora, Inc.)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitment.
(ai) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders agreeset forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of an L/C Party, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of any L/C Party and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Aggregate Revolving Credit Commitments, (y) the Revolving Credit Exposure of any Revolving Credit Lender shall not exceed such Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by an L/C Party for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by such L/C Party that the L/C Credit Extension so requested complies with the conditions set forth in the provisos to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each L/C Party’s ability to obtain Letters of Credit shall be fully revolving, and accordingly each L/C Party may, during the Agreementforegoing period, obtain Letters of Credit to incur replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from time and after the Closing Date shall be subject to time and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than thirty months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon written request the L/C Issuer with respect to such Letter of Borrower Credit any restriction, reserve or capital requirement (for which request shall include an application in form and detail satisfactory to Agentthe L/C Issuer is not otherwise compensated hereunder) not less than five in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(5B) Business Days prior to the proposed issuance of such Letter of CreditCredit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, Letter of Credit Obligations in respect of Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether or not then due and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and (ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have is in an expiry date which is later initial stated amount less than the earlier Dollar Equivalent of $1,000,000;
(yD) one year following except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;
(E) the L/C Issuer does not as of the issuance date of issuance thereof such requested Letter of Credit issue Letters of Credit in the requested currency; or
(F) any Revolving Credit Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the L/C Parties or such Defaulting Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to such Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(zG) such Letter of Credit contains any provisions for automatic reinstatement of the Commitment Termination Date. Lenders stated amount after any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of amend any Letter of Credit having an expiry date which is later than if (A) the Commitment Termination Date. It is understood that the determination of the bank or other legally authorized Person (including Agent or Lenders) which shall L/C Issuer would have no obligation at such time to issue or accept, as the case may be, any such Letter of Credit contemplated by this paragraph in its amended form under the terms hereof, or (aB) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters of Credit and related guaranties which are the subject beneficiary of such Letter of Credit Obligations must be in form and substance satisfactory does not accept the proposed amendment to Agent, in its sole discretion.
(b) In the event that Agent or any other Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall then be deemed automatically to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(cvi) In The L/C Issuer shall act on behalf of the event that Revolving Credit Lenders with respect to any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit issued by it and releases the documents associated therewith, and the L/C Issuer shall have all of all Letter the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, issued by it or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available proposed to be drawn under issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the applicable Letter(sterm “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) of Credit. Such cashas additionally provided herein with respect to the L/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (Toro Co)
Letters of Credit. SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEX C HERETO, BORROWER SHALL HAVE THE RIGHT TO REQUEST, AND AGENT AND LENDERS AGREE TO INCUR, THE SUBFACILITY LETTER OF CREDIT OBLIGATIONS IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH(a) The Letter of Credit Commitments.
(ai) Subject to the terms and conditions set forth herein, (1) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders agreeset forth in this Section 2.03, (x) from time to time on any Business Day during the Availability Period for the Revolving Credit Facility, to issue Letters of Credit denominated in Dollars for the account of the Borrower (provided that any Letter of Credit may be for the benefit of any Subsidiary of the Borrower) and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (y) to honor drafts under the Letters of Credit and (2) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and, except in the case of the following clause (w), no Lender shall be obligated to participate in any Letter of Credit if immediately after giving effect to such L/C Credit Extension, (w) the aggregate L/C Exposure in respect of Letters of Credit issued by such L/C Issuer would exceed such L/C Issuer’s L/C Issuer Sublimit, (x) the aggregate L/C Exposure would exceed the Letter of Credit Sublimit or (y) the Revolving Credit Exposure of any Lender would exceed such Lender’s Revolving Credit Commitment. Within the foregoing limits, and subject to the terms and conditions of hereof, the Agreement, Borrower’s ability to incur from time to time upon written request of Borrower (which request shall include an application in form and detail satisfactory to Agent) not less than five (5) Business Days prior to the proposed issuance of such Letter of Credit, Letter obtain Letters of Credit Obligations in respect of shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit; PROVIDED, HOWEVER, that the aggregate amount of all Letter Credit to replace Letters of Credit Obligations incurred by Lenders pursuant to this paragraph at any one time outstanding (whether that have expired or not then due that have been drawn upon and payable) shall not exceed the lesser of (i) Twelve Million Dollars ($12,000,000) and reimbursed.
(ii) the Revolving Credit Borrowing Availability MINUS the then outstanding Revolving Credit Loans; and, PROVIDED, further, that no such Letter of Credit shall have an expiry date which is later than the earlier of (y) one year following the date of issuance thereof and (z) the Commitment Termination Date. Lenders An L/C Issuer shall be under no obligation to incur Letter of Credit Obligations in respect of issue any Letter of Credit (and, in the case of clauses (B) and (C), shall not issue any Letter of Credit) if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having an the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) subject to Section 2.03(b)(iii), the expiry date which is later of such requested Letter of Credit would occur more than twelve months after the Commitment Termination date of issuance or last renewal, unless the relevant L/C Issuer has approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date. It is , unless the relevant L/C Issuer has approved such expiry date (it being understood that the determination participations of the bank or other legally authorized Person (including Agent or Lenders) which shall issue or accept, as the case may be, Revolving Credit Lenders in any undrawn Letter of Credit contemplated by this paragraph (a) shall be reasonably acceptable to Agent, Lenders and Borrower. In addition, all Letters in any event terminate on the Letter of Credit and related guaranties which are Expiration Date);
(D) the subject issuance of such Letter of Credit Obligations must be in form would violate any Laws binding upon such L/C Issuer;
(E) the issuance would violate any policies or procedures of such L/C Issuer;
(F) the face amount of such Letter of Credit (together with all other Letters of Credit issued by such L/C Issuer and substance satisfactory outstanding at such time) shall exceed the L/C Issuer Sublimit applicable to Agent, in its sole discretionsuch L/C Issuer; or
(G) the Letter of credit is not a standby letter of credit.
(biii) In the event that Agent or any other Lender An L/C Issuer shall make any payment on or pursuant be under no obligation to amend any Letter of Credit Obligation, if (A) such payment shall then be deemed automatically L/C Issuer would have no obligation at such time to constitute a Revolving Credit Advance under SECTION 1.2(A) of the Agreement, regardless of whether a Default or Event of Default shall have occurred and be continuing and notwithstanding Borrower's failure to satisfy the conditions precedent set forth in Article 2, and shall bear interest as provided in SECTION 1.8 of the Agreement, and each Lender shall be obligated to pay an amount calculated by applying issue such Lender's Commitment Percentage to the aggregate amount of such payment. The failure of any Lender to make available to Agent for Agent's own account an amount equivalent to a Lender's Commitment Percentage as to any such Revolving Credit Loan or payment by Agent under or in respect of a Letter of Credit shall not relieve any other Lender in its amended form under the terms hereof, or (B) the beneficiary of its obligation hereunder to make available to Agent an amount equivalent to such other Lender's Commitment Percentage with respect thereto, but no breach by a Lender shall cause an increase in any other Lender's Commitment Percentage. The obligations of the Lenders to make payments to the Agent with respect to Letter of Credit Obligations shall be irrevocable and does not subject accept the proposed amendment to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Letter of Credit issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
(c) In the event that any Letter of Credit Obligation, whether or not then due and payable, shall for any reason be outstanding on the Commitment Termination Date, Borrower shall either (i) obtain substitute Letters of Credit and releases of all Letter of Credit Obligations in form and substance satisfactory to Agent, in its sole discretion, or (ii) pay to Agent for the benefit of the Lenders cash in an amount equal to one hundred five percent (105%) of the maximum amount then available to be drawn under the applicable Letter(s) of Credit. Such cash
Appears in 1 contract
