The Letter of Credit Facility. (i) Subject to the terms and conditions hereinafter set forth (A) Issuing Bank agrees, in reliance on the Agreements of the Lenders set forth in this Section (1) to issue Letters of Credit for the account of any Borrower from time to time on any Business Day during the period from the Effective Date hereof until 10 days before the Termination Date in an aggregate Available Amount for all Letters of Credit not to exceed at any time the lesser of (x) the Letter of Credit Facility at such time and (y) the Unused Revolving Credit Commitments of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit if, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend Letters of Credit previously issued by it in accordance with the terms of this Section 2.16, 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 any Borrower and any drawings thereunder. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment of the Letter of Credit so requested complies with the conditions set forth in the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly such 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 Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (A) 10 days before the Termination Date and (B) one year after the date of issuance thereof (but such Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension. (iii) The Issuing Bank shall not be under any obligation to issue any Letter of Credit if: (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good xxxxx xxxxx material to it; (B) the issuance of the Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters of credit generally; (C) except as otherwise agreed by the Agent and the Issuing Bank, the Letter of Credit is in an initial stated amount of less than $100,000; (D) the Letter of Credit is to be denominated in a currency other than Dollars; (E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or (F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder. (iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof. (v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit. (vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bank.
Appears in 3 contracts
Samples: Credit Agreement (Scholastic Corp), Credit Agreement (Scholastic Corp), Credit Agreement (Scholastic Corp)
The Letter of Credit Facility. (i) Subject to The Borrower may request the Issuing ----------------------------- Bank, on the terms and conditions hereinafter set forth (A) forth, to issue, and the Issuing Bank agreesshall, in reliance on if so requested, issue, letters of credit (including the Agreements of the Lenders set forth in this Section (1) to issue Existing Letters of Credit Credit, the "Letters of Credit") for the account of any the ----------------- Borrower from time to time on any Business Day during the period from the Effective Date hereof date of the initial Advance until 10 days before the Termination Revolving Commitment Maturity Date in an aggregate Available Amount for maximum amount (assuming compliance with all Letters of Credit conditions to drawing) not to exceed exceed, at any time outstanding, the lesser of (xi) $2,000,000 (the "Letter of Credit Facility at such time ---------------- Facility") and (yii) an amount equal to the Unused Revolving Credit Commitments lesser of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit if, after giving effect to such issuance, the aggregate amount of A) the Revolving Credit Exposures -------- Commitment minus the aggregate principal amount of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend Letters of Credit previously issued by it in accordance with the terms of this Section 2.16, and (2) to honor drawings under the Letters of Credit, Advances ----- then outstanding and (B) the Lenders severally agree to participate in Letters Borrowing Base minus the aggregate principal amount ----- of Revolving Credit issued for the account of any Borrower and any drawings thereunderAdvances then outstanding. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment of the Letter of Credit so requested complies with the conditions set forth in the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly such 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 Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (Ai) 10 days before the Termination Revolving Commitment Maturity Date and or (Bii) one year after the date of issuance thereof (but such thereof. Immediately upon the issuance of each Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter or upon satisfaction of the conditions precedent set forth in Sections 3.1 and 3.2 ------------ --- hereof with respect to the Existing Letters of Credit”); provided that any such Auto-Extension Letter of Credit must permit , the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized sold and transferred to each Lender, and each Lender shall be deemed to have purchased and received from the Issuing Bank, in each case irrevocably and without any further action by any party, an undivided interest and participation in such Letter of Credit, each drawing thereunder and the obligations of the Borrower under this Agreement in respect thereof in an amount equal to the product of (but may not requirex) such Lender's Specified Percentage times (y) the Issuing Bank maximum amount available to permit the extension of be drawn under such Letter of Credit at any time (assuming compliance with all conditions to an expiry date not later than drawing). Within the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iii) The Issuing Bank shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good xxxxx xxxxx material to it;
(B) the issuance limits of the Letter of Credit would violate one or more policies of Facility, and subject to the Issuing Bank applicable limits referred to letters of credit generally;
(C) except as otherwise agreed by the Agent and the Issuing Bankabove, the Letter Borrower may request the issuance of Credit is in an initial stated amount of less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewithunder this Section 2.16(a) , and the Issuing Bank shall have all of the benefits and immunities (A) provided repay any --------------- Revolving Credit Advances resulting from drawings thereunder pursuant to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bank.Section ------- 2.16
Appears in 1 contract
Samples: Credit Agreement (Kevco Inc)
The Letter of Credit Facility. (ia) Subject to On the terms and conditions hereinafter set forth herein (Ai) the Issuing Bank agrees, in reliance on the Agreements of the Lenders set forth in this Section (1A) to issue Letters of Credit for the account of any Borrower from time to time on any Business Day during the period from the Effective Closing Date hereof until 10 days before to the Facility B Termination Date in an aggregate Available Amount for all to issue Letters of Credit not to exceed at any time for the lesser of (x) the Letter of Credit Facility at such time and (y) the Unused Revolving Credit Commitments account of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit ifCompany, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend renew Letters of Credit previously issued by it it, in accordance with the terms of this Section 2.16Subsections 3.02(c) and 3.02(e), and (2B) to honor drawings drafts under the Letters of Credit, ; and (Bii) the Lenders Banks severally agree to participate in Letters of Credit issued Issued for the account of the Company; provided, that the Issuing Bank shall not be obligated to Issue, and no Bank shall be obligated to participate in, any Borrower and any drawings thereunder. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment if as of the date of Issuance of such Letter of Credit so requested complies with (the conditions set forth in "Issuance Date") the preceding sentenceEffective Amount of all L/C Obligations plus the Effective Amount of all Facility B Revolving Loans exceeds the combined Facility B Commitments. Within the foregoing limits, and subject to the other terms and conditions hereof, each Borrower’s the Company's ability to obtain Letters of Credit shall be fully revolving, and accordingly such Borrower and, accordingly, the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that which have expired or that which have been drawn upon and reimbursed.
(ii) No Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (A) 10 days before the Termination Date and (B) one year after the date of issuance thereof (but such Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iiib) The Issuing Bank shall not be is under any no obligation to issue Issue any Letter of Credit if:
: (Ai) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Issuing such Letter of Credit, or any law Requirement of Law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance Issuance of letters of credit generally or the such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Closing Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Closing Date and which the Issuing Bank in good xxxxx xxxxx material to it;
faith deems maxxxxxx xx xt; (Bii) the issuance Issuing Bank has received written notice from any Bank, the Agent or the Company, on or prior to the Business Day prior to the requested date of the Issuance of such Letter of Credit would violate Credit, that one or more policies of the Issuing Bank applicable to letters conditions contained in Article V is not then satisfied; (iii) the expiry date of credit generally;
(C) except as otherwise agreed by the Agent and the Issuing Bank, the any requested Letter of Credit is in an initial stated amount (A) more than 360 days after the date of less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting LenderIssuance, unless the Issuing Bank has entered into arrangements, including and the delivery of Cash Collateral, satisfactory to the Issuing Bank (Majority Banks have approved such expiry date in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereofwriting, or (B) after the beneficiary Facility B Termination Date, unless all of the Banks have approved such expiry date in writing; (iv) the expiry date of any requested Letter of Credit is prior to the maturity date of any financial obligation to be supported by the requested Letter of Credit; (v) any requested Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it provide for drafts, or is not otherwise in form and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect substance acceptable to the Issuing Bank, or the Issuance of a Letter of Credit shall violate any applicable policies of the Issuing Bank; (vi) any Letter of Credit is for the purpose of supporting the issuance of any letter of credit by any other Person; or (vii) if such Letter of Credit is issued to support workmen's compensation liabilities and the face amount is more than $1,000,000.
Appears in 1 contract
The Letter of Credit Facility. (i) Subject to The Borrower may request the Issuing Bank, on the terms and conditions hereinafter set forth (A) forth, to issue, and the Issuing Bank agreesshall, if so requested, issue, letters of credit to be denominated in reliance on Dollars (the Agreements of the Lenders set forth in this Section (1) to issue "Letters of Credit Credit") for the account of the Borrower or for the joint account of the Borrower and any Borrower of its Subsidiaries from time to time on any Business Day during the period from the Effective Date hereof date of the initial Advance until 10 days before the Termination Revolving Commitment Maturity Date in an aggregate Available Amount for maximum amount (assuming compliance with all Letters of Credit conditions to drawing) not to exceed exceed, at any time outstanding, the lesser of (xi) $15,000,000 (the "Letter of Credit Facility at such time Facility") and (yii) the Unused Revolving Credit Commitments sum of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit if, after giving effect to such issuance, the aggregate amount of A) the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend Letters of Credit previously issued by it in accordance with the terms of this Section 2.16Commitment, and (2) to honor drawings under the Letters of Credit, and minus (B) the Lenders severally agree to participate in Letters aggregate principal amount of Revolving Credit issued for the account of any Borrower Advances and any drawings thereunderSwing Line Advances then outstanding. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment of the Letter of Credit so requested complies with the conditions set forth in the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly such 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 Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (Ai) 10 days 5 Business Days before the Termination Revolving Commitment Maturity Date and or (Bii) one year after the date of issuance thereof (but such provided that any Letter of Credit with a one-year term may by its terms be automatically renewable provide for the renewal thereof for additional one-year periods, which in no event extend beyond the date referred to in clause (each, an “Auto-Extension i) of this sentence). Immediately upon the issuance of each Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit , the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized sold and transferred to each Lender, and each Lender shall be deemed to have purchased and received from the Issuing Bank, in each case irrevocably and without any further action by any party, an undivided interest and participation in such Letter of Credit, each drawing thereunder and the obligations of the Borrower under this Agreement in respect thereof in an amount equal to the product of (but may not requirex) such Lender's Revolving Credit Specified Percentage times (y) the Issuing Bank maximum amount available to permit the extension of be drawn under such Letter of Credit at any time (assuming compliance with all conditions to an expiry date not later than drawing). Within the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iii) The Issuing Bank shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good xxxxx xxxxx material to it;
(B) the issuance limits of the Letter of Credit would violate one or more policies of Facility, and subject to the Issuing Bank applicable limits referred to letters of credit generally;
(C) except as otherwise agreed by the Agent and the Issuing Bankabove, the Letter Borrower may request the issuance of Credit is in an initial stated amount of less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it under this Section 2.16(a), repay any Revolving Credit Advances resulting from drawings thereunder pursuant to Section 2.16(c) and request the documents associated therewith, and the Issuing Bank shall have all issuance of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with additional Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bankunder this Section 2.16(a).
Appears in 1 contract
The Letter of Credit Facility. (ia) Subject to the terms and conditions hereinafter set forth herein, (Ai) the Issuing Bank agrees, in reliance on the Agreements of the Lenders set forth in this Section (1A) to issue Letters of Credit for the account of any Borrower from time to time on any Business Day during the period from the Effective Closing Date hereof until 10 30 days before the Revolving Credit Termination Date in an aggregate Available Amount for all to issue Letters of Credit not to exceed at any time for the lesser account of the Company (x) the it being understood that such Letter of Credit Facility at such time and (y) may be for the Unused Revolving Credit Commitments benefit of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter any of Credit ifits Subsidiaries), after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend renew Letters of Credit previously issued by it it, in accordance with the terms of this Section 2.16subsections 3.2(c) and 3.2(d), and (2B) to honor drawings drafts under the Letters of Credit, ; and (Bii) the Lenders Banks severally agree to participate in Letters of Credit issued Issued for the account of any Borrower and any drawings thereunder. Each request by a Borrower for the issuance or amendment of a Company (it being understood that such Letter of Credit may be for the benefit of any of its Subsidiaries); provided, that the Issuing Bank shall not be obligated to Issue, and no Bank shall be deemed obligated to be a representation by the Borrowers that the issuanceparticipate in, extension or amendment of the any Letter of Credit so requested complies with if as of the conditions set forth date of Issuance of such Letter of Credit (the "Issuance Date") (1) the aggregate Effective Amount of all Revolving Loans, Swingline Loans, and L/C Obligations exceeds the Aggregate Revolving Credit Commitment, (2) the Effective Amount of all Revolving Loans of such Bank plus the participation of such Bank, if any, in the preceding sentenceaggregate Effective Amount of all Swingline Loans and L/C Obligations exceeds such Bank's Revolving Credit Commitment, or (3) the Effective Amount of L/C Obligations exceeds the L/C Commitment. Within the foregoing limits, and subject to the other terms and conditions hereof, each Borrower’s the Company's ability to obtain Letters of Credit shall be fully revolving, and accordingly such Borrower and, accordingly, the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that which have expired or that which have been drawn upon and reimbursed.
(ii) No Letter . Upon the initial Credit Extension, all Existing Letters of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (A) 10 days before the Termination Date and (B) one year after the date of issuance thereof (but such Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank been issued pursuant hereto, and from and after such Credit Extension shall be subject to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under and governed by the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable and conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extensionhereof.
(iiib) The Issuing Bank shall not be is under any no obligation to issue Issue any Letter of Credit if:
(Ai) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Issuing such Letter of Credit, or any law Requirement of Law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance Issuance of letters of credit generally or the such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Closing Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Closing Date and which the Issuing Bank in good xxxxx xxxxx material to it;
(Bii) the issuance Issuing Bank has received written notice from any Bank, the Administrative Agent or the Company, on or prior to the Business Day prior to the requested date of Issuance of such Letter of Credit, that one or more of the applicable conditions contained in Article V is not then satisfied;
(iii) the expiry date of any requested Letter of Credit would is (A) more than one year after the date of Issuance, unless the Majority Banks have approved such expiry date in writing, or (B) after the Revolving Credit Termination Date, unless all of the Banks have approved such expiry date in writing;
(iv) the expiry date of any requested Letter of Credit is prior to the maturity date of any financial obligation to be supported by the requested Letter of Credit, unless such Letter of Credit is issued in connection with worker's compensation or to secure self-insurance deductibles or certain payments required in connection with export log yards, or all of the Banks have approved such expiry date in writing;
(v) any requested Letter of Credit does not provide for drafts, or is not otherwise in form and substance reasonably acceptable to the Issuing Bank, or the Issuance of a Letter of Credit may violate one or more any policies of the Issuing Bank applicable to letters customers and credits of credit generallya type similar to the Company and the transactions contemplated in this Agreement;
(Cvi) except as otherwise agreed any standby Letter of Credit is for the purpose of supporting the issuance of any letter of credit by the Agent and the Issuing Bank, the any other Person;
(vii) such Letter of Credit is in an initial stated a face amount of less than $100,000;
(D) the Letter of Credit is 100,000 or to be denominated in a currency other than Dollars;; or
(Eviii) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including requested Letter of Credit provides for payment thereunder sooner than the delivery of Cash Collateral, satisfactory Business Day following the presentation to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank 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 documentation required thereunder.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bank.
Appears in 1 contract
The Letter of Credit Facility. (ia) Subject to On the terms and conditions hereinafter set forth herein the Bank agrees, (A) Issuing Bank agrees, in reliance on the Agreements of the Lenders set forth in this Section (1) to issue Letters of Credit for the account of any Borrower from time to time on any Business Day during the period from the Effective Closing Date hereof until 10 days before to the Revolving Termination Date in an aggregate Available Amount for all Date, and during any such additional period pursuant to Section 2.01(c), to issue Letters of Credit not to exceed at any time for the lesser of (x) the Letter of Credit Facility at such time and (y) the Unused Revolving Credit Commitments account of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit ifBorrower, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend renew Letters of Credit previously issued by it it, in accordance with the terms of this Section 2.16provisions herein, and (2B) to honor drawings drafts under the Letters of Credit; provided, and (B) that the Lenders severally agree Bank shall not be obligated to participate in Letters of Credit issued for the account of Issue, any Borrower and any drawings thereunder. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment if as of the date of Issuance of such Letter of Credit so requested complies with (the conditions set forth in "Issuance Date") (1) the preceding sentenceEffective Amount of all L/C Obligations plus the Effective Amount of all Revolving Loans exceeds the lesser of: (i) the Borrowing Base; and (ii) the combined Commitments, or (2) the Effective Amount of L/C Obliga- tions exceeds the L/C Commitment. Within the foregoing limits, and subject to the other terms and conditions hereof, each the Borrower’s 's ability to obtain Letters of Credit shall be fully revolving, and accordingly such and, accordingly, the Borrower may, during the foregoing periodperiods, obtain Letters of Credit to replace Letters of Credit that which have expired or that which have been drawn upon and reimbursed.
(iib) No Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (A) 10 days before the Termination Date and (B) one year after the date of issuance thereof (but such Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the Issuing The Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have under no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iii) The Issuing Bank shall not be under any obligation to issue Issue any Letter of Credit if:
(Ai) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Issuing such Letter of Credit, or any law Requirement of Law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance Issuance of letters of credit generally or the such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Closing Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Closing Date and which the Issuing Bank in good xxxxx xxxxx faith deems material to itix;
(ii) the Bank has received written notice from the Borrower, on or prior to the Business Day prior to the requested date of Issuance of such Letter of Credit, that one or more of the applicable conditions contained in Article V is not then satisfied;
(iii) the expiry date of any requested Letter of Credit is (A) more than 360 days after the date of Issuance, or (B) more than 360 days after the Revolving Termination Date;
(iv) the expiry date of any requested Letter of Credit is prior to the maturity date of any financial obligation to be supported by the requested Letter of Credit;
(v) any requested Letter of Credit does not provide for drafts, or is not otherwise in form and substance acceptable to the Bank, or the Issuance of a Letter of Credit shall violate any applicable policies of the Bank;
(vi) any standby Letter of Credit is for the purpose of supporting the issuance of the Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters any letter of credit generally;by any other Person; or
(Cvii) except as otherwise agreed by the Agent and the Issuing Bank, the such Letter of Credit is in an initial stated a face amount of less than $100,000;
(D) the Letter of Credit is to be 100,000 or denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bank.
Appears in 1 contract
The Letter of Credit Facility. (ia) Subject to On the terms and conditions hereinafter set forth herein (Ai) the Issuing Bank agrees, in reliance on the Agreements of the Lenders set forth in this Section (1A) to issue Letters of Credit for the account of any Borrower from time to time on any Business Day during the period from the Effective Execution Date hereof until 10 days before to the Termination Date in an aggregate Available Amount for all to issue Letters of Credit not to exceed at any time for the lesser of (x) the Letter of Credit Facility at such time and (y) the Unused Revolving Credit Commitments account of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit ifCompany, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend renew Letters of Credit previously issued by it it, in accordance with the terms of this Section 2.16Subsections 3.02(c) and 3.02(e), and (2B) to honor drawings drafts under the Letters of Credit, ; and (Bii) the Lenders Banks severally agree to participate in Letters of Credit issued Issued for the account of the Company; provided, that the Issuing Bank shall not be obligated to Issue, and no Bank shall be obligated to participate in, any Borrower and any drawings thereunder. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuanceif, extension or amendment as of the date of Issuance of such Letter of Credit so requested complies with (the conditions set forth in "Issuance Date"), after giving effect to such Issuance, (1) the preceding sentenceEffective Amount of all L/C Obligations plus the Effective Amount of all Revolving Loans would exceed the lesser of (x) the combined Commitments and (y) the Borrowing Base, or (2) the Effective Amount of the L/C Obligations would exceed the L/C Commitment. Within the foregoing limits, and subject to the other terms and conditions hereof, each Borrower’s the Company's ability to obtain Letters of Credit shall be fully revolving, and accordingly such Borrower and, accordingly, the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that which have expired or that which have been drawn upon and reimbursed.
(ii) No Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (A) 10 days before the Termination Date and (B) one year after the date of issuance thereof (but such Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iiib) The Issuing Bank shall not be is under any no obligation to issue Issue any Letter of Credit if:
: (Ai) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Issuing such Letter of Credit, or any law Requirement of Law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance Issuance of letters of credit generally or the such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Execution Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Execution Date and which the Issuing Bank in good xxxxx xxxxx faith deems material to it;
; (Bii) the issuance Issuing Bank has xxxxxxxx xxitten notice from any Bank, the Administrative Agent or the Company, on or prior to the Business Day prior to the requested date of the Issuance of such Letter of Credit would violate Credit, that one or more policies of the Issuing Bank applicable to letters conditions contained in Article V is not then satisfied; (iii) the expiry date of credit generally;
(C) except as otherwise agreed by the Agent and the Issuing Bank, the any requested Letter of Credit is in an initial stated amount (A) more than 360 days after the date of less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting LenderIssuance, unless the Issuing Bank has entered into arrangements, including and the delivery of Cash Collateral, satisfactory to the Issuing Bank (Majority Banks have approved such expiry date in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereofwriting, or (B) after the beneficiary Termination Date, unless all of the Banks have approved such expiry date in writing; (iv) the expiry date of any requested Letter of Credit is prior to the maturity date of any financial obligation to be supported by the requested Letter of Credit; (v) any requested Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it provide for drafts, or is not otherwise in form and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect substance acceptable to the Issuing Bank, or the Issuance of a Letter of Credit shall violate any applicable policies of the Issuing Bank; (vi) any Letter of Credit is for the purpose of supporting the issuance of any letter of credit by any other Person; or (vii) if such Letter of Credit is issued to support workmen's compensation liabilities and the face amount is more than $1,000,000.
Appears in 1 contract
The Letter of Credit Facility. (ia) Subject to On the terms and conditions hereinafter set forth herein (Ai) the Issuing Bank agrees, in reliance on upon the Agreements agreements of the other Lenders set forth in this Section SECTION 3.01, (1A) to issue Letters of Credit for the account of any Borrower from time to time on any Business Day during the period from the Effective Execution Date hereof until 10 days before to the Termination Date in an aggregate Available Amount for all to issue Letters of Credit not to exceed at any time for the lesser of (x) the Letter of Credit Facility at such time and (y) the Unused Revolving Credit Commitments account of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit ifCompany, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend renew Letters of Credit previously issued by it it, in accordance with the terms of this Section 2.16SUBSECTIONS 3.02(c) and 3.02(e), and (2B) to honor drawings drafts under the Letters of Credit, ; and (Bii) the Lenders severally agree to participate in Letters of Credit issued Issued for the account of the Company; provided, that the Issuing Bank shall not be obligated to Issue, and no Lender shall be obligated to participate in, any Borrower and any drawings thereunder. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuanceif, extension or amendment as of the date of Issuance of such Letter of Credit so requested complies with (the conditions set forth in "ISSUANCE DATE"), after giving effect to such Issuance, (1) the preceding sentenceEffective Amount of all L/C Obligations plus the Effective Amount of all Revolving Loans would exceed the lesser of (x) the combined Commitments and (y) the Borrowing Base, or (2) the Effective Amount of the L/C Obligations would exceed the L/C Commitment. Within the foregoing limits, and subject to the other terms and conditions hereof, each Borrower’s the Company's ability to obtain Letters of Credit shall be fully revolving, and accordingly such Borrower and, accordingly, the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that which have expired or that which have been drawn upon and reimbursed.
(ii) No Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (A) 10 days before the Termination Date and (B) one year after the date of issuance thereof (but such Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iiib) The Issuing Bank shall not be is under any no obligation to issue Issue any Letter of Credit if:
: (Ai) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Issuing such Letter of Credit, or any law Requirement of Law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance Issuance of letters of credit generally or the such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Execution Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Execution Date and which the Issuing Bank in good xxxxx xxxxx faith deems material to it;
; (ii) the Issuing Bank has received writtxx xxxxxx xrom any Lender, the Administrative Agent or the Company, on or prior to the Business Day prior to the requested date of Issuance of such Letter of Credit, that one or more of the applicable conditions contained in ARTICLE V is not then satisfied; (iii) the expiry date of any requested Letter of Credit is (A) more than 360 days after the date of Issuance, unless the Issuing Bank and the Majority Lenders have approved such expiry date in writing, or (B) after the Termination Date, unless the Company has agreed to Cash Collateralize such Letter of Credit in accordance with SECTION 3.07(b); (iv) the expiry date of any requested Letter of Credit is prior to the maturity date of any financial obligation to be supported by the requested Letter of Credit; (v) any requested Letter of Credit does not provide for drafts, or is not otherwise in form and substance acceptable to the Issuing Bank, or the Issuance of a Letter of Credit shall violate any applicable policies of the Issuing Bank; (vi) any Letter of Credit is for the purpose of supporting the issuance of any letter of credit by any other Person; (vii) if such Letter of Credit is issued to support workmen's compensation liabilities and the face amount is more than $1,750,000; or (viii) the issuance of the such Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters of credit generally;
(C) except as otherwise agreed by the Agent and the Issuing Bank, the Letter of Credit is in an initial stated amount of less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank 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's policies.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bank.
Appears in 1 contract
The Letter of Credit Facility. (i) Subject to The Borrower may request the Issuing ----------------------------- Bank, on the terms and conditions hereinafter set forth (A) forth, to issue, and the Issuing Bank agreesshall, in reliance on if so requested, issue, letters of credit (the Agreements of the Lenders set forth in this Section (1) to issue "Letters of Credit ---------- Credit") for the account of the Borrower or any Borrower Subsidiary from time to time on ------ any Business Day during the period from the Effective Date hereof date of the initial Advance until 10 days before the Termination Maturity Date in an aggregate Available Amount for maximum amount (assuming compliance with all Letters of Credit conditions to drawing) not to exceed at any time outstanding the lesser of (xi) $175,000,000 (the "Letter of Credit Facility at such time Facility") and (yii) the Unused Revolving Credit Commitments sum of (A) the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit if, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend Letters of Credit previously issued by it in accordance with the terms of this Section 2.16, and (2) to honor drawings under the Letters of Credit, and Commitment minus (B) -------------------------- ----- the Lenders severally agree to participate in Letters aggregate principal amount of Credit issued for the account of any Borrower and any drawings thereunderAdvances then outstanding. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment of the Letter of Credit so requested complies with the conditions set forth in the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly such 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 Letter of Credit (other than the Tax-Exempt Letters of Credit) shall be issued to support any obligation of the Borrower or any Subsidiary in respect of debt for borrowed money. No Letter of Credit (other than the Tax-Exempt Letters of Credit) shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (Ai) 10 ten days before prior to the Termination Maturity Date and or (Bii) one year after the date of issuance thereof (but such thereof. Immediately upon the issuance of each Letter of Credit may by its terms be automatically renewable (eachor, an “Auto-Extension Letter with respect to the Existing Letters of Credit”, on the Agreement Date); provided that any such Auto-Extension Letter of Credit must permit , the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized sold and transferred to each Lender, and each Lender shall be deemed to have purchased and received from the Issuing Bank, in each case irrevocably and without any further action by any party, an undivided interest and participation in such Letter of Credit, each drawing thereunder and the obligations of the Borrower under this Agreement in respect thereof in an amount equal to the product of (but may not requirex) such Lender's Specified Percentage of the Commitment times (y) the Issuing Bank maximum amount available to permit the extension of be drawn under such Letter of Credit at any time (assuming compliance with all conditions to an expiry date not later than drawing). Within the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iii) The Issuing Bank shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good xxxxx xxxxx material to it;
(B) the issuance limits of the Letter of Credit would violate one or more policies of Facility, and subject to the Issuing Bank applicable limits referred to letters of credit generally;
(C) except as otherwise agreed by the Agent and the Issuing Bankabove, the Letter Borrower may request the issuance of Credit is in an initial stated amount of less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it under this Section 2.16(a), repay any Advances resulting from drawings thereunder pursuant to Section 2.16(c) and request the documents associated therewith, and the Issuing Bank shall have all issuance of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with additional Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bankunder this Section 2.16(a).
Appears in 1 contract
The Letter of Credit Facility. (i) Subject to Each Issuing Bank severally agrees, on the terms and conditions hereinafter set forth (A) Issuing Bank agreesforth, in reliance on the Agreements of the Lenders set forth in this Section (1) to issue letters of credit (together with the Existing Letters of Credit Credit, the "Letters of Credit") for the account of any Borrower from time to time on any Business Day during the period from the Effective Date date hereof until 10 days before the Termination Date (i) in an aggregate Available Amount for all Letters of Credit issued by such Issuing Bank not to exceed at any time the lesser of (x) the Letter of Credit Facility at such time and (y) such Issuing Bank's Letter of Credit Commitment and (ii) in an Available Amount for each such Letter of Credit not to exceed an amount equal to an amount equal to the Unused Revolving Credit Commitments of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit if, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend Letters of Credit previously issued by it in accordance with the terms of this Section 2.16, 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 any Borrower and any drawings thereunder. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment of the Letter of Credit so requested complies with the conditions set forth in the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly such 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 Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (A) 10 days before the Termination Date and (B) (1) in the case of a Standby Letter of Credit, one year after the date of issuance thereof (but such Standby Letter of Credit may by its terms be automatically renewable annually upon notice (each, an “Auto-Extension a "Notice of Renewal") given to the Issuing Bank that issued such Standby Letter of Credit and the Agent on or prior to any date for notice of renewal set forth in such Letter of Credit but in any event at least three Business Days prior to the date of the proposed renewal of such Standby Letter of Credit and upon fulfillment of the applicable conditions set forth in Article III unless such Issuing Bank has notified the Borrowers (with a copy to the Agent) on or prior to the date for notice of termination set forth in such Letter of Credit but in any event at least 30 Business Days prior to the date of automatic renewal of its election not to renew such Standby Letter of Credit (a "Notice of Termination")) and (2) in the case of a Documentary Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with , one year after the date of issuance thereof; provided that the terms 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 (12) month period to be agreed upon at the time such Standby Letter of Credit that is issued. Unless otherwise directed by automatically renewable annually shall (x) require the Issuing BankBank that issued such Standby Letter of Credit to give the beneficiary named in such Standby Letter of Credit notice of any Notice of Termination, (y) permit such beneficiary, upon receipt of such notice, to draw under such Standby Letter of Credit prior to the date such Standby Letter of Credit otherwise would have been automatically renewed and (z) not permit the expiration date (after giving effect to any renewal) of such Standby Letter of Credit in any event to be extended to a date after the dates referred to in clause (A) above. If either a Notice of Renewal is not given by the applicable Borrower shall not be required to make or a specific request Notice of Termination is given by the relevant Issuing Bank pursuant to the Issuing Bank for any immediately preceding sentence, such extension. Once an Auto-Extension Standby Letter of Credit has shall expire on the date on which it otherwise would have been issuedautomatically renewed; provided, however, that even in the Lenders absence of receipt of a Notice of Renewal the relevant Issuing Bank may in its discretion, unless instructed to the contrary by the Agent or the applicable Borrower, deem that a Notice of Renewal had been timely delivered and in such case, a Notice of Renewal shall be deemed to have authorized (but may not require) been so delivered for all purposes under this Agreement. Each Standby Letter of Credit shall contain a provision authorizing the Issuing Bank to permit the extension of that issued such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time deliver to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iii) The Issuing Bank shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good xxxxx xxxxx material to it;
(B) the issuance of the Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters of credit generally;
(C) except as otherwise agreed by the Agent and the Issuing Bank, the Letter of Credit is in an initial stated amount of less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit, upon the occurrence and during the continuance of an Event of Default, a notice (a "Default Termination Notice") terminating such Letter of Credit does not accept and giving such beneficiary 15 days to draw such Letter of Credit. Within the proposed amendment to limits of the Letter of Credit.
(vi) The Issuing Bank shall act on behalf Credit Facility, and subject to the limits referred to above, the Borrowers may request the issuance of the Lenders with respect to any Letters of Credit issued by it under this Section 2.16(a), repay any Letter of Credit Advances resulting from drawings thereunder pursuant to Section 2.16(d) and request the documents associated therewith, and the Issuing Bank shall have all issuance of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with additional Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bankunder this Section 2.16(a).
Appears in 1 contract
Samples: Credit Agreement (Scholastic Corp)
The Letter of Credit Facility. (i) Subject to the terms and conditions hereinafter set forth herein, (A) each Issuing Bank agrees, in reliance on upon the Agreements agreements of the Lenders set forth in this Section 2.03, (1) to issue Letters of Credit for the account of any Borrower from time to time on any Business Day during the period from the Effective Date hereof until 10 days before the Termination Date in an aggregate Available Amount for all Letters of Credit not to exceed at any time the lesser of (x) the Letter of Credit Facility at such time and (y) Expiration Date, to issue Letters of Credit for the Unused Revolving Credit Commitments account of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter Borrower or any of Credit ifits Subsidiaries, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend Letters of Credit previously issued by it it, in accordance with the terms of this Section 2.162.03(b), and (2) to honor drawings under the Letters of Credit, ; and (B) the Revolving A Lenders severally agree to participate in Letters of Credit issued for the account of any the Borrower or its Subsidiaries and any drawings thereunder; provided, that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the aggregate outstanding amount of all Revolving A Credit Advances, L/C Obligations and Swing Line Advances shall not exceed the Revolving A Credit Facility, (x) the aggregate outstanding Revolving A Credit Advances and funded and unfunded participations in L/C Obligations and Swing Line Advances of any Lender shall not exceed such Lender’s Revolving A Credit Commitment, (y) the outstanding amount of the L/C Obligations shall not exceed the Letter of Credit Facility and (z) the outstanding amount of L/C Obligations of any Issuing Bank shall not exceed such Issuing Bank’s Letter of Credit Commitment. Each request by a the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers Borrower that the issuance, extension or amendment of the Letter of L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly such the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto and deemed L/C Obligations, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof.
(ii) No The Issuing Banks shall not issue any Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of if (A) 10 days before subject to Section 2.03(b)(iv), the Termination Date and expiry date of the requested Letter of Credit would occur more than twelve (B12) one year months after the date of issuance thereof (but or last extension, unless the Required Lenders have approved such Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter of Credit”)expiry date; provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before expiry date of the Non-Extension Notice Date (1) from requested Letter of Credit would occur after the Agent that Letter of Credit Expiration Date, unless all the Required Revolving A Lenders have elected not to permit approved such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extensionexpiry date.
(iii) The Issuing Bank Banks shall not be under any obligation to issue any Letter of Credit if:
if (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable Applicable Law with respect to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good xxxxx fxxxx xxxxx material to it;
, (B) the issuance of the Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters of credit generally;
, (C) except as otherwise agreed by the Administrative Agent and the Issuing Bank, the Letter of Credit is in an initial stated amount of less than $100,000;
50,000, (D) the Letter of Credit is to be denominated in a currency other than Dollars;
, (E) any Revolving A Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateralcash collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers Borrower or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(a)(iv2.15(c)) 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 Exposure Obligations as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
, or (F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank Banks shall not amend any Letter of Credit if the Issuing Bank Banks would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank Banks shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank Banks would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Each Issuing Bank shall act on behalf of the Revolving A Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank Banks shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank Banks in connection with Letters of Credit issued by it them or proposed to be issued by it them and L/C Related Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article VII included the Issuing Bank Banks with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing BankBanks.
Appears in 1 contract
Samples: Credit Agreement (Cracker Barrel Old Country Store, Inc)
The Letter of Credit Facility. (ia) Subject to On the terms and conditions hereinafter set ----------------------------- forth herein, (Ai) each Issuing Bank agrees, in reliance on the Agreements of the Lenders set forth in this Section (1) to issue Letters of Credit for the account of any Borrower from time to time on any Business Day during the period from the Effective Closing Date hereof until 10 days before to the Termination Date in an aggregate Available Amount for all to issue Letters of Credit not to exceed at any time for the lesser of (x) the Letter of Credit Facility at such time and (y) the Unused Revolving Credit Commitments account of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit if, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) Company and to amend or extend renew Letters of Credit previously issued by it in accordance with the terms of this Section 2.16, and (2) to honor drawings under the Letters of Credit, and (Bii) the Lenders Banks severally agree to participate in Letters of Credit issued Issued for the account of the Company; provided, however, that (A) no Issuing Bank shall be obligated to -------- ------- Issue Letters of Credit (x) in excess of its Issuance Allocation or, if an Issuing Bank has received a Tenor Allocation, for a period of time longer than its Tenor Allocation or (y) if the L/C Obligations owed to such Issuing Bank would exceed its Issuance Allocation and (B) no Bank shall be obligated to participate in any Borrower and any drawings thereunder. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment if as of the date of Issuance of such Letter of Credit so requested complies with (the conditions set forth "Issuance Date") the participation of such Bank in the preceding sentenceEffective ------------- Amount of all L/C Obligations would exceed such Bank's Commitment. Within the foregoing limits, and subject to the other terms and conditions hereof, each Borrower’s the Company's ability to obtain Letters of Credit shall be fully revolving, and accordingly such Borrower and, accordingly, the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that which have expired or that which have been drawn upon and reimbursed.
(ii) No Letter . An Issuing Bank may Issue Letters of Credit itself or may cause one of its Affiliates to Issue Letters of Credit. Any such Affiliate Issuing Letters of Credit shall have an expiration date (including all of the rights of an Issuing Bank hereunder and may exercise any of the applicable Borrower remedies available to an Issuing Bank hereunder even though such Affiliate is not a signatory to this Agreement or to the L/C-Related Documents (other than Letters of Credit), and any Affiliate of an Issuing Bank so Issuing Letters of Credit shall be an express third party beneficiary of this Agreement and the L/C-Related Documents between the Issuing Bank with respect to require renewal) later than which it is an Affiliate and the earlier of (A) 10 days before the Termination Date and (B) one year after the date of issuance thereof (but such Company. The Letter of Credit Offices of each Issuing Bank and any Affiliate of such Issuing Bank through which such Issuing Bank Issues Letters of Credit are set forth on Schedule 1.01, as such ------------- schedule may change from time to time. Promptly after receipt by the Agent of information from an Issuing Bank as to changes in its terms be automatically renewable (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit Offices, the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice Agent shall deliver an updated Schedule 1.01 to the beneficiary thereof not later than a day Company and each Bank. -------------
(the “Non-Extension Notice Date”b) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the No Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iii) The Issuing Bank shall not be under any an obligation to issue Issue any Letter of Credit if:
(Ai) any order, judgment or decree of any Governmental Authority or arbitrator shall purports by its terms purport to enjoin or restrain the such Issuing Bank from issuing the Issuing such Letter of Credit, Credit or any law Requirement of Law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibitprohibits, or request requests that the Issuing Bank refrain from, the issuance Issuance of commercial letters of credit generally or the such Letter of Credit in particular or shall impose imposes upon the such Issuing Bank with respect to the such Letter of Credit any restriction, reserve or capital requirement (for which the such Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Closing Date, or shall impose imposes upon the such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Closing Date and which the such Issuing Bank in good xxxxx xxxxx material to it;
(Bii) such Issuing Bank has received written notice from any Bank, the Agent or the Company, on or prior to the Business Day prior to the requested date of Issuance of such Letter of Credit, that one or more of the applicable conditions contained in Article IV is not then satisfied;
(iii) the issuance expiry date of the any requested Letter of Credit would violate one is more than 180 days after the date of Issuance; provided, however, that up -------- ------- to $20,000,000 of Letters of Credit may expire up to 364 days after the date of Issuance but in no event later than June 23, 1998; or
(iv) any requested Letter of Credit is not in form and substance acceptable to the relevant Issuing Bank, or more the Issuance of a Letter of Credit violates any applicable policies of the Issuing Bank applicable to letters of credit generally;Bank.
(Cc) except as otherwise agreed by the Agent and the If any Issuing Bank, the Bank Issues a Letter of Credit is in an initial stated which (i) causes the aggregate amount of less than $100,000;
(D) the Letter outstanding Letters of Credit is Issued by such Bank to be denominated in a currency other than Dollars;
exceed its Issuance Allocation, (Eii) any Lender is at that time a Defaulting Lender, unless causes the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 outstanding L/C Exposure as Obligations to which exceed the Commitments or (iii) does not comply with Section 2.0l(b)(iii) or such Issuing Bank has actual or potential Fronting ExposureBank's Tenor Allocation, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The if any, such Issuing Bank shall be solely responsible for collecting payment therefor from the Company, and the Banks shall not amend be required to participate in the L/C Obligations relating thereto. For purposes of determining the outstanding L/C Obligations and a Bank's Issuance Allocation and Tenor Allocation on any date of determination, each outstanding Letter of credit shall be deemed to be outstanding in the undrawn face amount thereof for the thirty day period following its expiry date unless previously cancelled, but in no event shall any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in constitute an L/C Obligation more than 30 days after its amended form under the terms hereofexpiry date.
(vd) The Issuance of Letters of Credit by`an Issuing Bank shall be under no obligation to amend any Letter this Agreement does not preclude an Issuing Bank from issuing Other Letters of Credit; provided, however, that (i) Other Letters of Credit if shall not be counted -------- ------- as utilization of an Issuing Bank's Issuance Allocation and (Aii) the Issuing Bank would have no obligation at Banks shall not be required to purchase risk participations pursuant to Section 2.03(b) in such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter Other Letters of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bank.
Appears in 1 contract
The Letter of Credit Facility. (i) Subject to the terms and conditions hereinafter set forth (A) Issuing Bank agrees, in reliance on the Agreements of the Lenders set forth in this Section (1) to issue standby letters of credit (together with the Existing Letter of Credit, the “Letters of Credit Credit”) for the account of any Borrower from time to time on any Business Day during the period from the Effective Date hereof until 10 days before the Termination Date in an aggregate Available Amount for all Letters of Credit not to exceed at any time the lesser of (x) the Letter of Credit Facility at such time and (y) the Unused Revolving Credit Commitments of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit iftime, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend Letters of Credit previously issued by it in accordance with the terms of this Section 2.16, 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 any Borrower and any drawings thereunder. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment of the Letter of Credit so requested complies with the conditions set forth in the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly such 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 Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (A) 10 days before the Termination Date and (B) one year after the date of issuance thereof (but such Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter of Credit”); NAI-1502274953v9 provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided provided, however, that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iii) The Issuing Bank shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good xxxxx xxxxx material to it;
(B) the issuance of the Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters of credit generally;
(C) except as otherwise agreed by the Agent and the Issuing Bank, the Letter of Credit is in an initial stated amount of less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(a)(iv2.22(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter NAI-1502274953v9 of Credit and all other L/C Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bank.
Appears in 1 contract
Samples: Credit Agreement (Scholastic Corp)
The Letter of Credit Facility. (i) Subject to The Borrower may request the Issuing ----------------------------- Bank, on the terms and conditions hereinafter set forth (A) forth, to issue, and the Issuing Bank agreesshall, in reliance on if so requested, issue, letters of credit (including the Agreements of the Lenders set forth in this Section (1) to issue Existing Letters of Credit Credit, the "Letters of Credit") for the account of the Borrower or any Borrower Subsidiary from time to time on any Business Day during the period from the Effective Date hereof date of the initial Advance until 10 days before the Termination Maturity Date in an aggregate Available Amount for maximum amount (assuming compliance with all Letters of Credit conditions to drawing) not to exceed exceed, at any time outstanding, the lesser of (xi) $75,000,000 (the "Letter of Credit Facility at such time and Facility") or (yii) the Unused Revolving Credit Commitments result of (1) the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit if, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend Letters of Credit previously issued by it in accordance with the terms of this Section 2.16, and Commitment minus (2) to honor drawings under the Letters aggregate principal amount ----- of Credit, Advances and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of any Borrower and any drawings thereunderReimbursement Obligations then outstanding. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment of the Letter of Credit so requested complies with the conditions set forth in the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly such 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 Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (Ai) 10 days before the Termination Maturity Date and or (Bii) one year two years after the date of issuance thereof (but such thereof. Immediately upon the issuance of each Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter or upon satisfaction of the conditions precedent set forth in Sections 3.1 and 3.2 ------------ --- hereof with respect to the Existing Letters of Credit”); provided that any such Auto-Extension Letter of Credit must permit , the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized sold and transferred to each Lender, and each Lender shall be deemed to have purchased and received from the Issuing Bank, in each case irrevocably and without any further action by any party, an undivided interest and participation in such Letter of Credit, each drawing thereunder and the obligations of the Borrower under this Agreement in respect thereof in an amount equal to the product of (but may not requirex) such Lender's Specified Percentage times (y) the Issuing Bank maximum amount available to permit the extension of be drawn under such Letter of Credit at any time (assuming compliance with all conditions to an expiry date not later than drawing). Within the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iii) The Issuing Bank shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good xxxxx xxxxx material to it;
(B) the issuance limits of the Letter of Credit would violate one or more policies of Facility, and subject to the Issuing Bank applicable limits referred to letters of credit generally;
(C) except as otherwise agreed by the Agent and the Issuing Bankabove, the Letter Borrower may request the issuance of Credit is in an initial stated amount of less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it under this Section 2.16(a), repay any --------------- Advances resulting from drawings thereunder pursuant to Section 2.16(c) hereof --------------- and request the documents associated therewith, and the Issuing Bank shall have all issuance of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with additional Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and under this Section ------- 2.16(a). ------- (B) as additionally provided herein with respect to the Issuing Bank.b)
Appears in 1 contract
Samples: Credit Agreement (Compusa Inc)
The Letter of Credit Facility. (ia) Subject to On the terms and conditions hereinafter set forth herein (Ai) the Issuing Bank agrees, in reliance on upon the Agreements agreements of the other Lenders set forth in this Section SECTION 3.01, (1A) to issue Letters of Credit for the account of any Borrower from time to time on any Business Day during the period from the Effective Execution Date hereof until 10 days before to the Termination Date in an aggregate Available Amount for all to issue Letters of Credit not to exceed at any time for the lesser of (x) the Letter of Credit Facility at such time and (y) the Unused Revolving Credit Commitments account of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit ifCompany, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend renew Letters of Credit previously issued by it it, in accordance with the terms of this Section 2.16SUBSECTIONS 3.02(c) and 3.02(e), and (2B) to honor drawings drafts under the Letters of Credit, ; and (Bii) the Lenders severally agree to participate in Letters of Credit issued Issued for the account of the Company; provided, that the Issuing Bank shall not be obligated to Issue, and no Lender shall be obligated to participate in, any Borrower and any drawings thereunder. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuanceif, extension or amendment as of the date of Issuance of such Letter of Credit so requested complies with (the conditions set forth in "ISSUANCE DATE"), after giving effect to such Issuance, (1) the preceding sentenceEffective Amount of all L/C Obligations plus the Effective Amount of all Revolving Loans would exceed the lesser of (x) the combined Commitments and (y) the Borrowing Base, or (2) the Effective Amount of the L/C Obligations would exceed the L/C Commitment. Within the foregoing limits, and subject to the other terms and conditions hereof, each Borrower’s the Company's ability to obtain Letters of Credit shall be fully revolving, and accordingly such Borrower and, accordingly, the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that which have expired or that which have been drawn upon and reimbursed.
(ii) No Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (A) 10 days before the Termination Date and (B) one year after the date of issuance thereof (but such Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iiib) The Issuing Bank shall not be is under any no obligation to issue Issue any Letter of Credit if:
: (Ai) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Issuing such Letter of Credit, or any law Requirement of Law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance Issuance of letters of credit generally or the such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Execution Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Execution Date and which the Issuing Bank in good xxxxx xxxxx faith deems material to it;
; (ii) the Issuing Bank has received writtex xxxxxx xxom any Lender, the Administrative Agent or the Company, on or prior to the Business Day prior to the requested date of Issuance of such Letter of Credit, that one or more of the applicable conditions contained in ARTICLE V is not then satisfied; (iii) the expiry date of any requested Letter of Credit is (A) more than 360 days after the date of Issuance, unless the Issuing Bank and the Majority Lenders have approved such expiry date in writing, or (B) after the Termination Date, unless the Company has agreed to Cash Collateralize such Letter of Credit in accordance with SECTION 3.07; (iv) the expiry date of any requested Letter of Credit is prior to the maturity date of any financial obligation to be supported by the requested Letter of Credit; (v) any requested Letter of Credit does not provide for drafts, or is not otherwise in form and substance acceptable to the Issuing Bank, or the Issuance of a Letter of Credit shall violate any applicable policies of the Issuing Bank; (vi) any Letter of Credit is for the purpose of supporting the issuance of any letter of credit by any other Person; (vii) if such Letter of Credit is issued to support workmen's compensation liabilities and the face amount is more than $1,000,000; or (viii) the issuance of the such Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters of credit generally;
(C) except as otherwise agreed by the Agent and the Issuing Bank, the Letter of Credit is in an initial stated amount of less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank 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's policies.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bank.
Appears in 1 contract
The Letter of Credit Facility. (i) Subject to The Borrower may request the Issuing Bank, on the terms and conditions hereinafter set forth (A) forth, to issue, and the Issuing Bank agreesshall, in reliance on if so requested, issue, letters of credit (the Agreements of the Lenders set forth in this Section (1) to issue "Letters of Credit Credit") for the account of the Borrower or any Borrower Subsidiary from time to time on any Business Day during the period from the Effective Date hereof date of the initial Advance until 10 days before the Termination Maturity Date in an aggregate Available Amount for maximum amount (assuming compliance with all Letters of Credit conditions to drawing) not to exceed at any time outstanding the lesser of (xi) $100,000,000 (the "Letter of Credit Facility at such time Facility") and (yii) the Unused Revolving Credit Commitments sum of (A) the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit if, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend Letters of Credit previously issued by it in accordance with the terms of this Section 2.16, and (2) to honor drawings under the Letters of Credit, and Commitment minus (B) the Lenders severally agree to participate in Letters aggregate principal amount of Credit issued for the account of any Borrower and any drawings thereunderAdvances then outstanding. Each request by a Borrower for the issuance or amendment of a No Letter of Credit shall be deemed issued to be a representation by the Borrowers that the issuance, extension or amendment support any obligation of the Letter Borrower or any Subsidiary in respect of Credit so requested complies with the conditions set forth in the preceding sentencedebt for borrowed money. 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 such 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 Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (Ai) 10 days before the Termination Maturity Date and or (Bii) one year after the date of issuance thereof (but such thereof. Immediately upon the issuance of each Letter of Credit may by its terms be automatically renewable (eachor, an “Auto-Extension Letter with respect to the Existing Letters of Credit”, on the Agreement Date); provided that any such Auto-Extension Letter of Credit must permit , the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized sold and transferred to each Lender, and each Lender shall be deemed to have purchased and received from the Issuing Bank, in each case irrevocably and without any further action by any party, an undivided interest and participation in such Letter of Credit, each drawing thereunder and the obligations of the Borrower under this Agreement in respect thereof in an amount equal to the product of (but may not requirex) such Lender's Specified Percentage of the Commitment times (y) the Issuing Bank maximum amount available to permit the extension of be drawn under such Letter of Credit at any time (assuming compliance with all conditions to an expiry date not later than drawing). Within the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iii) The Issuing Bank shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good xxxxx xxxxx material to it;
(B) the issuance limits of the Letter of Credit would violate one or more policies of Facility, and subject to the Issuing Bank applicable limits referred to letters of credit generally;
(C) except as otherwise agreed by the Agent and the Issuing Bankabove, the Letter Borrower may request the issuance of Credit is in an initial stated amount of less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it under this Section 2.16(a), repay any Advances resulting from drawings thereunder pursuant to Section 2.16(c) and request the documents associated therewith, and the Issuing Bank shall have all issuance of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with additional Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bankunder this Section 2.16(a).
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The Letter of Credit Facility. (ia) Subject to all of the terms and conditions hereinafter hereof, the Combined Commitments (subject to the limitation of the L/C Commitment) may be availed by the Company in the form of Letters of Credit. On the terms and conditions set forth herein (Ai) the Issuing Bank agrees, in reliance on the Agreements of the Lenders set forth in this Section (1A) to issue Letters of Credit for the account of any Borrower from time to time on any Business Day during the period from the Effective Closing Date hereof until 10 days before to the Termination Date in an aggregate Available Amount for all to issue Letters of Credit not to exceed at any time payable in Dollars or in an Offshore Currency for the lesser of (x) the Letter of Credit Facility at such time and (y) the Unused Revolving Credit Commitments account of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit ifCompany, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend renew Letters of Credit previously issued by it it, in accordance with the terms of this Section 2.16Sections 3.02(c) and 3.02(d), and (2B) to honor drawings drafts under the Letters of Credit, ; and (Bii) the Lenders Banks severally agree to participate in Letters of Credit issued Issued for the account of the Company; provided, that the Issuing Bank shall not be obligated to Issue, and no Bank shall be obligated to participate in, any Borrower and any drawings thereunder. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment if as of the date of Issuance of such Letter of Credit so requested complies with (the conditions set forth "Issuance Date") (1) the Effective Amount of the U.S. Dollar Equivalent of all L/C Obligations plus the Effective Amount of all Revolving Loans exceeds the Combined Commitments, (2) the Effective Amount of the U.S. Dollar Equivalent of all L/C Obligations exceeds the L/C Commitment, (3) the participation of any Bank in the preceding sentenceEffective Amount of the U.S. Dollar Equivalent of all L/C Obligations plus the Effective Amount of the Revolving Loans of such Bank exceeds such Bank's Commitment, or (4) the Effective Amount of the U.S. Dollar Equivalent of L/C Obligations for Financial Letters of Credit exceeds $15,000,000. Within the foregoing limits, and subject to the other terms and conditions hereof, each Borrower’s the Company's ability to obtain Letters of Credit shall be fully revolving, and accordingly such Borrower and, accordingly, the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that which have expired or that which have been drawn upon and reimbursed.
(ii) No Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (A) 10 days before the Termination Date and (B) one year after the date of issuance thereof (but such Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iiib) The Issuing Bank shall not be is under any no obligation to issue Issue any Letter of Credit if:
(Ai) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Issuing such Letter of Credit, or any law Requirement of Law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance Issuance of letters of credit generally or the such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Closing Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Closing Date and which the Issuing Bank in good xxxxx xxxxx faith deems material to it;
(Bii) the issuance Issuing Bank has received written notice from any Bank, the Agent or the Company, on or prior to the Business Day prior to the requested date of the Issuance of such Letter of Credit would violate Credit, that one or more policies of the Issuing Bank applicable to letters of credit generallyconditions contained in Article V is not then satisfied;
(Ciii) except as otherwise agreed by the Agent and the Issuing Bank, the expiry date of any requested Letter of Credit is in an initial stated amount a date later than the third (3rd) anniversary of less than $100,000;
(D) the Closing Date; provided that, on or prior to the Termination Date, the Company is required to replace or refinance any such Letter of Credit that has an expiry date which is to be denominated in a currency other date later than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretionTermination Date; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such requested Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it provide for drafts, or is not otherwise in form and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect substance acceptable to the Issuing Bank, or the Issuance of a Letter of Credit shall violate any applicable policies of the Issuing Bank.
Appears in 1 contract
The Letter of Credit Facility. (i) Subject to the terms and conditions hereinafter set forth herein, (A) each Issuing Bank agrees, in reliance on upon the Agreements agreements of the Lenders set forth in this Section 2.03, (1) to issue Letters of Credit for the account of any Borrower from time to time on any Business Day during the period from the Effective Date hereof until 10 days before the Termination Date in an aggregate Available Amount for all Letters of Credit not to exceed at any time the lesser of (x) the Letter of Credit Facility at such time and (y) Expiration Date, to issue Letters of Credit for the Unused Revolving Credit Commitments account of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter Borrower or any of Credit ifits Subsidiaries, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend Letters of Credit previously issued by it it, in accordance with the terms of this Section 2.162.03(b), and (2) to honor drawings under the Letters of Credit, ; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of any the Borrower or its Subsidiaries and any drawings thereunder; provided, that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the aggregate outstanding amount of all Revolving Credit Advances, L/C Obligations and Swing Line Advances shall not exceed the Revolving Credit Facility, (x) the aggregate outstanding Revolving Credit Advances and funded and unfunded participations in L/C Obligations and Swing Line Advances of any Lender shall not exceed such Lender’s Revolving Credit Commitment, (y) the outstanding amount of the L/C Obligations shall not exceed the Letter of Credit Facility and (z) the outstanding amount of L/C Obligations of any Issuing Bank shall not exceed such Issuing Bank’s Letter of Credit Commitment. Each request by a the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers Borrower that the issuance, extension or amendment of the Letter of L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly such the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto and deemed L/C Obligations, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof.
(ii) No The Issuing Banks shall not issue any Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of if (A) 10 days before subject to Section 2.03(b)(iv), the Termination Date and expiry date of the requested Letter of Credit would occur more than twelve (B12) one year months after the date of issuance thereof (but or last extension, unless the Required Lenders have approved such Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter of Credit”)expiry date; provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before expiry date of the Non-Extension Notice Date (1) from requested Letter of Credit would occur after the Agent that Letter of Credit Expiration Date, unless all the Required Revolving Lenders have elected not to permit approved such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extensionexpiry date.
(iii) The Issuing Bank Banks shall not be under any obligation to issue any Letter of Credit if:
if (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable Applicable Law with respect to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good xxxxx fxxxx xxxxx material to it;
, (B) the issuance of the Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters of credit generally;
, (C) except as otherwise agreed by the Administrative Agent and the Issuing Bank, the Letter of Credit is in an initial stated amount of less than $100,000;
50,000, (D) the Letter of Credit is to be denominated in a currency other than Dollars;
, (E) any Revolving Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateralcash collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers Borrower or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(a)(iv2.15(c)) 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 Exposure Obligations as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
, or (F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank Banks shall not amend any Letter of Credit if the Issuing Bank Banks would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank Banks shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank Banks would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Each Issuing Bank shall act on behalf of the Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank Banks shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank Banks in connection with Letters of Credit issued by it them or proposed to be issued by it them and L/C Related Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article VII included the Issuing Bank Banks with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing BankBanks.
Appears in 1 contract
Samples: Credit Agreement (Cracker Barrel Old Country Store, Inc)
The Letter of Credit Facility. (i) Subject to The Borrowers, through the Notification Agent, may request the Issuing Bank, on the terms and conditions hereinafter set forth (A) forth, to issue, and the Issuing Bank agreesshall, in reliance on if so requested, issue, letters of credit (the Agreements "LETTERS OF CREDIT") for the joint account of the Lenders set forth in this Section (1) to issue Letters of Credit for Borrowers or the joint account of any Borrower and any of its Restricted Subsidiaries, from time to time on any Business Day during the period from the Effective Date hereof date of the initial Advance until 10 days before the Termination Maturity Date in an aggregate Available Amount for maximum amount (assuming compliance with all Letters of Credit conditions to drawing) not to exceed at any time outstanding the lesser of (xi) $50,000,000 (the Letter of Credit Facility at such time and (y) the Unused Revolving Credit Commitments of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit if, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend Letters of Credit previously issued by it in accordance with the terms of this Section 2.16"LETTER OF CREDIT FACILITY"), and (2ii) to honor drawings under the Letters sum of Credit, and (A) the Commitment MINUS (B) the Lenders severally agree to participate in Letters aggregate principal amount of Credit issued for the account of any Borrower and any drawings thereunderAdvances then outstanding. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment of the Letter of Credit so requested complies with the conditions set forth in the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly such 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 Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (Ai) 10 days before the Termination Maturity Date and or (Bii) one year after the date of issuance thereof (but such thereof. The Borrowers, together with any of their Restricted Subsidiaries which may be an account party, shall be jointly and severally liable for the repayment of any Reimbursement Obligation. Immediately upon the issuance of each Letter of Credit may by its terms be automatically renewable (eachor on the Agreement Date, an “Auto-Extension Letter with respect to Existing Letters of Credit”); provided that any such Auto-Extension Letter of Credit must permit , the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized sold and transferred to each Lender, and each Lender shall be deemed to have purchased and received from the Issuing Bank, in each case irrevocably and without any further action by any party, an undivided interest and participation in such Letter of Credit, each drawing thereunder and the obligations of the Borrowers under this Agreement in respect thereof in an amount equal to the product of (but may not requirex) such Lender's Specified Percentage times (y) the Issuing Bank maximum amount available to permit the extension of be drawn under such Letter of Credit at any time (assuming compliance with all conditions to an expiry date not later than drawing). Within the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iii) The Issuing Bank shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good xxxxx xxxxx material to it;
(B) the issuance limits of the Letter of Credit would violate one or more policies of Facility, and subject to the Issuing Bank applicable limits referred to letters of credit generally;
(C) except as otherwise agreed by the Agent and the Issuing Bankabove, the Letter Borrowers, through the Notification Agent, may request the issuance of Credit is in an initial stated amount of less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it under this SECTION 2.16(a), repay any Advances resulting from drawings thereunder pursuant to SECTION 2.16(c) and request the documents associated therewith, and the Issuing Bank shall have all issuance of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with additional Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bankunder this SECTION 2.16(a).
Appears in 1 contract
The Letter of Credit Facility. (ia) Subject to On the terms and conditions hereinafter set forth herein the Bank agrees, (A) Issuing Bank agrees, in reliance on the Agreements of the Lenders set forth in this Section (1) to issue Letters of Credit for the account of any Borrower from time to time on any Business Day during the period from the Effective Closing Date hereof until 10 days before to the Revolving Termination Date in an aggregate Available Amount for all Date, and during any such additional period pursuant to Section 2.01(c), to issue Letters of Credit not to exceed at any time for the lesser of (x) the Letter of Credit Facility at such time and (y) the Unused Revolving Credit Commitments account of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit ifBorrower, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend renew Letters of Credit previously issued by it it, in accordance with the terms of this Section 2.16provisions herein, and (2B) to honor drawings drafts under the Letters of Credit; provided, and (B) that the Lenders severally agree Bank shall not be obligated to participate in Letters of Credit issued for the account of Issue, any Borrower and any drawings thereunder. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment if as of the date of Issuance of such Letter of Credit so requested complies with (the conditions set forth in "Issuance Date") (1) the preceding sentenceEffective Amount of all L/C Obligations plus the Effective Amount of all Revolving Loans exceeds the combined Commitments, or (2) the Effective Amount of L/C Obligations exceeds the L/C Commitment. Within the foregoing limits, and subject to the other terms and conditions hereof, each the Borrower’s 's ability to obtain Letters of Credit shall be fully revolving, and accordingly such and, accordingly, the Borrower may, during the foregoing periodperiods, obtain Letters of Credit to replace Letters of Credit that which have expired or that which have been drawn upon and reimbursed.
(iib) No Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (A) 10 days before the Termination Date and (B) one year after the date of issuance thereof (but such Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the Issuing The Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have under no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iii) The Issuing Bank shall not be under any obligation to issue Issue any Letter of Credit if:
(Ai) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Issuing such Letter of Credit, or any law Requirement of Law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance Issuance of letters of credit generally or the such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Closing Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Closing Date and which the Issuing Bank in good xxxxx xxxxx material to it;
(ii) the Bank has received written notice from the Borrower, on or prior to the Business Day prior to the requested date of Issuance of such Letter of Credit, that one or more of the applicable conditions contained in Article V is not then satisfied;
(iii) the expiry date of any requested Letter of Credit is (A) more than 360 days after the date of Issuance, or (B) more than 360 days after the Revolving Termination Date;
(iv) the expiry date of any requested Letter of Credit is prior to the maturity date of any financial obligation to be supported by the requested Letter of Credit;
(v) any requested Letter of Credit does not provide for drafts, or is not otherwise in form and substance acceptable to the Bank, or the Issuance of a Letter of Credit shall violate any applicable policies of the Bank;
(vi) any standby Letter of Credit is for the purpose of supporting the issuance of the Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters any letter of credit generally;by any other Person; or
(Cvii) except as otherwise agreed by the Agent and the Issuing Bank, the such Letter of Credit is in an initial stated a face amount of less than $100,000;
(D) the Letter of Credit is to be 100,000 or denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bank.
Appears in 1 contract
The Letter of Credit Facility. (i) Subject to the terms and conditions hereinafter set forth herein, (A) each Issuing Bank agrees, in reliance on upon the Agreements agreements of the Lenders set forth in this Section 2.03, (1) to issue Letters of Credit for the account of any Borrower from time to time on any Business Day during the period from the Effective Date hereof until 10 days before the Termination Date in an aggregate Available Amount for all Letters of Credit not to exceed at any time the lesser of (x) the Letter of Credit Facility at such time and (y) Expiration Date, to issue Letters of Credit for the Unused Revolving Credit Commitments account of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter Borrower or any of Credit ifits Subsidiaries, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend Letters of Credit previously issued by it it, in accordance with the terms of this Section 2.162.03(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 any the Borrower or its Subsidiaries and any drawings thereunder; provided, that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the aggregate outstanding amount of all Revolving Credit Advances, L/C Obligations and Swing Line Advances shall not exceed the Revolving Credit Facility, (x) the aggregate outstanding Revolving Credit Advances and funded and unfunded participations in L/C Obligations and Swing Line Advances of any Lender shall not exceed such Lender’s Revolving Credit Commitment, (y) the outstanding amount of the L/C Obligations shall not exceed the Letter of Credit Facility and (z) the outstanding amount of L/C Obligations of any Issuing Bank shall not exceed such Issuing Bank’s Letter of Credit Commitment. Each request by a the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers Borrower that the issuance, extension or amendment of the Letter of L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly such the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto and deemed L/C Obligations, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof.
(ii) No The Issuing Banks shall not issue any Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of if (A) 10 days before subject to Section 2.03(b)(iv), the Termination Date and expiry date of the requested Letter of Credit would occur more than twelve (B12) one year months after the date of issuance thereof (but or last extension, unless the Required Lenders have approved such Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter of Credit”)expiry date; provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before expiry date of the Non-Extension Notice Date (1) from requested Letter of Credit would occur after the Agent that Letter of Credit Expiration Date, unless all the Required Lenders have elected not to permit approved such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extensionexpiry date.
(iii) The Issuing Bank Banks shall not be under any obligation to issue any Letter of Credit if:
if (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable Applicable Law with respect to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good xxxxx xxxxx material to it;
, (B) the issuance of the Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters of credit generally;
, (C) except as otherwise agreed by the Administrative Agent and the Issuing Bank, the Letter of Credit is in an initial stated amount of less than $100,000;
50,000, (D) the Letter of Credit is to be denominated in a currency other than Dollars;
, (E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateralcash collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers Borrower or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(a)(iv2.15(c)) 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 Exposure Obligations as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
, or (F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank Banks shall not amend any Letter of Credit if the Issuing Bank Banks would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank Banks shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank Banks would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Each Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank Banks shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank Banks in connection with Letters of Credit issued by it them or proposed to be issued by it them and L/C Related Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article VII included the Issuing Bank Banks with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing BankBanks.
Appears in 1 contract
Samples: Credit Agreement (Cracker Barrel Old Country Store, Inc)
The Letter of Credit Facility. Pursuant to the Existing Credit Agreement, the Fronting Bank has issued Letters of Credit (isuch Letters of Credit as are outstanding on the date hereof under the Existing Credit Agreement and set forth on Schedule II being the "Existing Letters of Credit") Subject for the account of the Borrower. Effective as of the Effective Date, each Existing Letter of Credit shall be deemed to be a Letter of Credit under this Agreement and each Lender on the date hereof will be deemed to have purchased and received, without further action on the part of any party, an undivided interest and participation in such existing Letters of Credit, based upon such Lender's Pro Rata Share of its Revolving Credit Commitment under this Agreement. Any such interest and participation so purchased shall automatically become an undivided interest and participation in such Letters of Credit. In addition, the Fronting Bank agrees, on the terms and conditions hereinafter set forth (A) Issuing Bank agreesforth, in reliance on the Agreements of the Lenders set forth in this Section (1) to issue letters of credit (together with the Existing Letters of Credit Credit, the "Letters of Credit") for the account of the Borrower or any of its Subsidiaries (it being understood that the Obligations with respect to such Letters of Credit shall be Obligations of the Borrower notwithstanding that such Letters of Credit shall be for the account of its Subsidiaries) from time to time on any Business Day during the period from the Effective Date hereof date of the initial Borrowing until 10 30 days before the Termination Date (i) in an aggregate Available Amount for all Letters of Credit issued by the Fronting Bank not to exceed at any time the lesser of (x) the Letter of Credit Facility at such time and (yii) in an Available Amount for each such Letter of Credit not to exceed the Unused Revolving Credit Commitments of the Lenders at on such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit if, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend Letters of Credit previously issued by it in accordance with the terms of this Section 2.16, 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 any Borrower and any drawings thereunderBusiness Day. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment of the Letter of Credit so requested complies with the conditions set forth in the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly such 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 Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (A) 10 30 days before the Termination Date and (B) one year and, in the case of a Documentary Letter of Credit, 180 days after the date of issuance thereof (but such Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit thereof. Within the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iii) The Issuing Bank shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good xxxxx xxxxx material to it;
(B) the issuance limits of the Letter of Credit would violate one or more policies of Facility, and subject to the Issuing Bank applicable limits referred to letters of credit generally;
(C) except as otherwise agreed by the Agent and the Issuing Bankabove, the Letter Borrower may request the issuance of Letters of Credit is in an initial stated amount of less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lenderunder this Section 2.13(a), unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend repay any Letter of Credit if Advances resulting from drawings thereunder pursuant to Section 2.13(c) and request the Issuing Bank would not be permitted at such time to issue the Letter issuance of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any additional Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bankunder this Section 2.13(a).
Appears in 1 contract
The Letter of Credit Facility. (i) Subject to Each Issuing Bank severally agrees, on the terms and conditions hereinafter set forth (A) Issuing Bank agreesforth, in reliance on the Agreements of the Lenders set forth in this Section (1) to issue standby letters of credit (together with the Existing Letters of Credit Credit, the “Letters of Credit”) for the account of any Borrower from time to time on any Business Day during the period from the Effective Date date hereof until 10 days before the Termination Date in an aggregate Available Amount for all Letters of Credit not to exceed at any time the lesser of (xi) the Letter of Credit Facility at such time and (yii) the Unused Revolving Credit Commitments of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit if, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend Letters of Credit previously issued by it in accordance with the terms of this Section 2.16, 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 any Borrower and any drawings thereunder. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment of the Letter of Credit so requested complies with the conditions set forth in the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly such 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 Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (A) 10 days before the Termination Date and (B) one year after the date of issuance thereof (but such Letter of Credit may by its terms be automatically renewable annually upon notice (each, an a “Auto-Extension Notice of Renewal”) given to the Issuing Bank that issued such Letter of CreditCredit and the Agent on or prior to any date for notice of renewal set forth in such Letter of Credit but in any event at least three Business Days prior to the date of the proposed renewal of such Letter of Credit and upon fulfillment of the applicable conditions set forth in Article III unless such Issuing Bank has notified the Borrowers (with a copy to the Agent) on or prior to the date for notice of termination set forth in such Letter of Credit but in any event at least 30 Business Days prior to the date of automatic renewal of its election not to renew such Letter of Credit (a “Notice of Termination”)); provided that any such Auto-Extension the terms of each Letter of Credit must permit that is automatically renewable annually shall (x) require the Issuing Bank that issued such Letter of Credit to prevent give the beneficiary named in such Letter of Credit notice of any Notice of Termination, (y) permit such extension at least once in each twelve (12) month period (commencing with beneficiary, upon receipt of such notice, to draw under such Letter of Credit prior to the date such Letter of issuance Credit otherwise would have been automatically renewed and (z) not permit the expiration date (after giving effect to any renewal) of such Letter of CreditCredit in any event to be extended to a date after the dates referred to in clause (A) above. If either a Notice of Renewal is not given by giving prior notice the applicable Borrower or a Notice of Termination is given by the relevant Issuing Bank pursuant to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time immediately preceding sentence, such Letter of Credit is issued. Unless shall expire on the date on which it otherwise directed would have been automatically renewed; provided, however, that even in the absence of receipt of a Notice of Renewal the relevant Issuing Bank may in its discretion, unless instructed to the contrary by the Issuing Bank, Agent or the applicable Borrower shall not be required to make Borrower, deem that a specific request to the Issuing Bank for any Notice of Renewal had been timely delivered and in such extension. Once an Auto-Extension Letter case, a Notice of Credit has been issued, the Lenders Renewal shall be deemed to have authorized (but may not require) been so delivered for all purposes under this Agreement. Each Letter of Credit shall contain a provision authorizing the Issuing Bank to permit the extension of that issued such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time deliver to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iii) The Issuing Bank shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good xxxxx xxxxx material to it;
(B) the issuance of the Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters of credit generally;
(C) except as otherwise agreed by the Agent and the Issuing Bank, the Letter of Credit is in an initial stated amount of less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit, upon the occurrence and during the continuance of an Event of Default, a notice (a “Default Termination Notice”) terminating such Letter of Credit does not accept and giving such beneficiary 15 days to draw such Letter of Credit. Within the proposed amendment to limits of the Letter of Credit.
(vi) The Issuing Bank shall act on behalf Credit Facility, and subject to the limits referred to above, the Borrowers may request the issuance of the Lenders with respect to any Letters of Credit issued by it under this Section 2.16(a), repay any Letter of Credit Advances resulting from drawings thereunder pursuant to Section 2.16(d) and request the documents associated therewith, and the Issuing Bank shall have all issuance of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with additional Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bankunder this Section 2.16(a).
Appears in 1 contract
Samples: Credit Agreement (Scholastic Corp)
The Letter of Credit Facility. (i) Subject to The Borrower may request the Issuing Bank, on the terms and conditions hereinafter set forth (A) forth, to issue, and the Issuing Bank agreesshall, in reliance on if so requested, issue, letters of credit (the Agreements of the Lenders set forth in this Section (1"LETTERS OF CREDIT") to issue Letters of Credit for the account of the Borrower or the joint account of the Borrower and any Borrower of its Restricted Subsidiaries, from time to time on any Business Day during the period from the Effective Date hereof date of the initial Advance until 10 days before the Termination Maturity Date in an aggregate Available Amount for maximum amount (assuming compliance with all Letters of Credit conditions to drawing) not to exceed at any time outstanding the lesser of (xi) $75,000,000 (the Letter of Credit Facility at such time and (y) the Unused Revolving Credit Commitments of the Lenders at such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit if, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend Letters of Credit previously issued by it in accordance with the terms of this Section 2.16"LETTER OF CREDIT FACILITY"), and (2ii) to honor drawings under the Letters sum of Credit, and (A) the Commitment MINUS (B) the Lenders severally agree to participate in Letters aggregate principal amount of Credit issued for the account of any Borrower and any drawings thereunderAdvances then outstanding. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment of the Letter of Credit so requested complies with the conditions set forth in the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly such 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 Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (A) 10 days before the Termination Date and (B) one year after the date of issuance thereof (but provided, however, if on the Maturity Date there are any Letters of Credit outstanding, the Borrower shall deposit on such date in the L/C Cash Collateral Account immediately available funds in an amount to cash collateralize in full the total outstanding Letters of Credit). The Borrower, together with any of its Restricted Subsidiaries which may be an account party, shall be jointly and severally liable for the repayment of any Reimbursement Obligation. Immediately upon the issuance of each Letter of Credit may by its terms be automatically renewable (eachor on the Agreement Date, an “Auto-Extension Letter with respect to Existing Letters of Credit”); provided that any such Auto-Extension Letter of Credit must permit , the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized sold and transferred to each Lender, and each Lender shall be deemed to have purchased and received from the Issuing Bank, in each case irrevocably and without any further action by any party, an undivided interest and participation in such Letter of Credit, each drawing thereunder and the obligations of the Borrower under this Agreement in respect thereof in an amount equal to the product of (but may not requirex) such Lender's Revolving Credit Specified Percentage times (y) the Issuing Bank maximum amount available to permit the extension of be drawn under such Letter of Credit at any time (assuming compliance with all conditions to an expiry date not later than drawing). Within the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iii) The Issuing Bank shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good xxxxx xxxxx material to it;
(B) the issuance limits of the Letter of Credit would violate one or more policies of Facility, and subject to the Issuing Bank applicable limits referred to letters of credit generally;
(C) except as otherwise agreed by the Agent and the Issuing Bankabove, the Letter Borrower may request the issuance of Credit is in an initial stated amount of less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it under this SECTION 2.16(a), repay any Advances resulting from drawings thereunder pursuant to SECTION 2.16(c) and request the documents associated therewith, and the Issuing Bank shall have all issuance of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with additional Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bankunder this SECTION 2.16(a).
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The Letter of Credit Facility. Pursuant to the Existing Credit Agreement, the Fronting Bank has issued Letters of Credit (isuch Letters of Credit as are outstanding on the date hereof under the Existing Credit Agreement and set forth on Schedule II being the "Existing Letters of Credit") Subject for the account of the Borrower. Effective as of the Effective Date, each Existing Letter of Credit shall be deemed to be a Letter of Credit under this Agreement and each Lender on the date hereof will be deemed to have purchased and received, without further action on the part of any party, an undivided interest and participation in such existing Letters of Credit, based upon such Lender's Pro Rata Share of its Revolving Credit Commitment under this Agreement. Any such interest and participation so purchased shall automatically become an undivided interest and participation in such Letters of Credit. In addition, the Fronting Bank agrees, on the terms and conditions hereinafter set forth (A) Issuing Bank agreesforth, in reliance on the Agreements of the Lenders set forth in this Section (1) to issue letters of credit (together with the Existing Letters of Credit Credit, the "Letters of Credit") for the account of the Borrower or any of its Subsidiaries (it being understood that the Obligations with respect to such Letters of Credit shall be Obligations of the Borrower notwithstanding that such Letters of Credit shall be for the account of its Subsidiaries) from time to time on any Business Day during the period from the Effective Date hereof date of the initial Borrowing until 10 30 days before the Termination Date (i) in an aggregate Available Amount for all Letters of Credit issued by the Fronting Bank not to exceed at any time the lesser of (x) the Letter of Credit Facility at such time and (yii) in an Available Amount for each such Letter of Credit not to exceed the Unused Revolving Credit Commitments of the Lenders at on such time (provided that in no event shall the Issuing Bank be required to issue a Letter of Credit if, after giving effect to such issuance, the aggregate amount of the Revolving Credit Exposures of all Lenders shall exceed the Revolving Credit Availability at such time) and to amend or extend Letters of Credit previously issued by it in accordance with the terms of this Section 2.16, 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 any Borrower and any drawings thereunderBusiness Day. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the issuance, extension or amendment of the Letter of Credit so requested complies with the conditions set forth in the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly such 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 Letter of Credit shall have an expiration date (including all rights of the applicable Borrower or the beneficiary to require renewal) later than the earlier of (A) 10 30 days before the Termination Date and (B) one year and, in the case of a Documentary Letter of Credit, 180 days after the date of issuance thereof (but such Letter of Credit may by its terms be automatically renewable (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit thereof. Within the Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the applicable Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 10 days before the Termination Date; provided that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of this Section 2.16 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Agent that the Required Lenders have elected not to permit such extension or (2) from the Agent, any Lender or a Borrower that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.
(iii) The Issuing Bank shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good xxxxx xxxxx material to it;
(B) the issuance limits of the Letter of Credit would violate one or more policies of Facility, and subject to the Issuing Bank applicable limits referred to letters of credit generally;
(C) except as otherwise agreed by the Agent and the Issuing Bankabove, the Letter Borrower may request the issuance of Letters of Credit is in an initial stated amount of less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lenderunder this Section 2.13(a), unless the Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing Bank (in its sole discretion) with the Borrowers or such Lender to eliminate the Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.23(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 Exposure as to which the Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Issuing Bank shall not amend repay any Letter of Credit if Advances resulting from drawings thereunder pursuant to Section 2.13(c) and request the Issuing Bank would not be permitted at such time to issue the Letter issuance of Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to any additional Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (A) provided to the Agent in Article VII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article VII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bank.under this Section 2.13(a). 50
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