L/C Commitment. Subject to the terms and conditions hereof, each Letter of Credit Provider (or its permitted successors and assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.07 and 2.08, agrees to provide Interest Reserve Letters of Credit or other standby letters of credit requested by the Co-Issuers and agreed upon by Letter of Credit Provider in its sole discretion (together with the Interest Reserve Letters of Credit each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Co-Issuers or its designee on any Business Day at any time until the date that is ten (10) Business Days prior to the Commitment Termination Date to be issued in accordance with Section 2.06(g) in such form as may be approved from time to time by the Letter of Credit Provider; provided that the Letter of Credit Provider shall have no obligation or right to provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, or (ii) the Series 2021-1 Class A-1 Outstanding Principal Amount would exceed the Series 2021-1 Class A-1 Notes Maximum Principal Amount. Notwithstanding anything herein to the contrary, if a requested Letter of Credit would cause the Series 2021-1 Class A-1 Outstanding Principal Amount attributable to a Letter of Credit Provider (in its capacity as Committed Note Purchaser and Letter of Credit Provider) to exceed its Commitment Amount (an “L/C Commitment Excess”), the Investor Groups shall effectuate a reallocation of the Series 2021-1 Class A-1 Outstanding Principal Amounts to the extent necessary so that, immediately after such requested Letter of Credit is issued, no L/C Commitment Excess would exist; provided that the Co-Issuers shall not be liable for any Breakage Amounts resulting solely from such reallocations. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $25,000 or, if less than $25,000, shall bear a reasonable administrative fee to be agreed upon by the Co-Issuers and the Letter of Credit Provider and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ten (10) Business Days prior to the Commitment Termination Date (the “Required Expiration Date”); provided that any Letter of Credit may provide for the automatic extensions thereof for additional periods, each individually not to exceed one year (which shall in no event extend beyond the Required Expiration Date) unless the Letter of Credit Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be renewed; provided further that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the Co-Issuers in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory to the Letter of Credit Provider in its sole and absolute discretion have been made with the Letter of Credit Provider (and, if the Letter of Credit Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each Series 2021-1 Interest Reserve Letter of Credit shall (1) name the Indenture Trustee, for the benefit of the Noteholders, as the beneficiary thereof; (2) allow the Indenture Trustee to submit a notice of drawing in respect of such Series 2021-1 Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Interest Reserve Account, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such Series 2021-1 Interest Reserve Letter of Credit shall be paid directly into the Interest Reserve Account or otherwise used to pay Required Interest Reserve Draw Amounts in accordance with Sections 5.01(c) of the Indenture. The Letter of Credit Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the Letter of Credit Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (a) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the Co-Issuers shall issue and shall cause the Indenture Trustee to authenticate the Series 2021-1 Class A-1 L/C Notes, which the Co-Issuers shall deliver to the Letter of Credit Providers on the Series 2021-1 Closing Date; provided that, if such Series 2021-1 Class L/C Note is an Uncertificated Note, the Indenture Trustee shall instead register it as described in Section 2.01(a) of the Indenture. Such Series 2021-1 Class A-1 L/C Note shall be dated the Series 2021-1 Closing Date, shall be registered in the name of the Letter of Credit Provider or in such other name or nominee as the Letter of Credit Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 and (unless it is an Uncertificated Note) shall be duly authenticated in accordance with the provisions of the Indenture. The issuance and sale of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series 2021-1 Closing Date will constitute a Borrowing in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series 2021-1 Class A-1 L/C Note and shall be deemed to be Series 2021-1 Class A-1 Outstanding Principal Amounts (in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount) for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for the purposes of accrual of interest. Subject to the terms of this Agreement, each drawing of a Letter of Credit will constitute a “L/C Subfacility Increase” in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note and reimbursements of any Unreimbursed L/C Drawings thereunder will constitute a “L/C Subfacility Decrease” in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note. Each Letter of Credit Provider and the Co-Issuers agree to promptly notify the Series 2021-1 Class A-1 Administrative Agent and the Indenture Trustee of any such decreases for which notice to the Series 2021-1 Class A-1 Administrative Agent is not otherwise provided hereunder. (b) The Co-Issuers may (or shall cause the Manager on its behalf to) from time to time request that any Letter of Credit Provider provide a new Letter of Credit by delivering to the Letter of Credit Provider at its address for notices specified herein an application therefor in the form required by the applicable Letter of Credit Provider or L/C Issuing Bank, as applicable (an “Application”), completed to the satisfaction of the Letter of Credit Provider, and such other certificates, documents and other papers and information as the Letter of Credit Provider may reasonably request. Upon receipt of any completed Application, the Letter of Credit Provider will notify the Series 2021-1 Class A-1 Administrative Agent and the Indenture Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration of the requested Letter of Credit (which shall comply with Section 2.06(a) and (i)) and, subject to the other conditions set forth herein and upon receipt of written confirmation from the Series 2021-1 Class A-1 Administrative Agent (based, with respect to any portion of the Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount held by any Person other than the Series 2021-1 Class A-1 Administrative Agent, solely on written notices received by the Series 2021-1 Class A-1 Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series 2021-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2021-1 Class A-1 Notes Maximum Principal Amount (provided that the Letter of Credit Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the Series 2021-1 Class A-1 Administrative Agent for purposes of determining whether the Letter of Credit Provider received such prior written confirmation from the Series 2021-1 Class A-1 Administrative Agent with respect to any Letter of Credit), the Letter of Credit Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the Letter of Credit Provider be required to provide any Letter of Credit earlier than three (3) Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section 2.06(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the Letter of Credit Provider and the Co-Issuers. The Letter of Credit Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the Series 2021-1 Class A-1 Administrative Agent) promptly following the issuance thereof. Each Letter of Credit Provider shall promptly furnish to the Series 2021-1 Class A-1 Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, and the Indenture Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (c) The Co-Issuers shall pay to the Letter of Credit Provider the L/C Monthly Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Monthly Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. In addition, the Co-Issuers shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. (d) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (e) The Co-Issuers may, upon at least three (3) Business Days’ notice to the Series 2021-1 Class A-1 Administrative Agent and the applicable Letter of Credit Provider, effect a permanent reduction in the related L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Co-Issuers in writing and with the prior written consent of the Letter of Credit Provider and the Series 2021-1 Class A-1 Administrative Agent, the Letter of Credit Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the Outstanding Series 2021-1 Class A-1 Advance Notes and the L/C Commitment does not exceed the aggregate amount of the Commitments. (f) Each Letter of Credit Provider shall satisfy its obligations under this Section 2.06 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate as long as any such Letter of Credit issued would not be an Ineligible Interest Reserve Letter of Credit. If any such Letter of Credit would be an Ineligible Interest Reserve Letter of Credit, a Person selected by the Co-Issuers (at the reasonable expense of the Co-Issuers) shall issue such Letter of Credit; provided that any Letter of Credit issued by such Person would not be an Ineligible Interest Reserve Letter of Credit (the Letter of Credit Provider (or such Affiliate of the Letter of Credit Provider) or such other Person selected by the Co-Issuers (at the reasonable expense of the Co-Issuers), in each case in its capacity as the Co-Issuers of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). (g) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Co-Issuers in order to have any Letter of Credit issued by a Person selected by the Co-Issuers pursuant to Section 2.06(g) be a “Letter of Credit” that has been issued hereunder and such Person selected by the Co-Issuers be an “L/C Issuing Bank”. (h) Each Letter of Credit Provider and, if the Letter of Credit Provider is not the L/C Issuing Bank for any Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2021-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) Each Series 2021-1 Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.04 of the I

Appears in 2 contracts

Sources: Class a 1 Note Purchase Agreement (DigitalBridge Group, Inc.), Note Purchase Agreement (DigitalBridge Group, Inc.)

L/C Commitment. (a) Subject to the terms and conditions hereof, ~~each Letter of Credit~~ the L/C Provider (or its permitted ~~successors and~~ assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections ~~2.07~~ 2.08 and ~~2.08~~2.09, agrees to provide standby letters of credit, including Interest Reserve Letters of Credit ~~or other standby letters of credit requested by the Co-Issuers and agreed upon by Letter of Credit Provider in its sole discretion~~ (~~together with the Interest Reserve Letters of Credit~~ each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of ~~the~~ any Co-~~Issuers~~ Issuer or its designee on any Business Day ~~at any time until~~ during the period commencing on the Series 2025-1 Closing Date and ending on the date that is ten (10) Business Days prior to the Commitment Termination Date to be issued in accordance with Section ~~2.06(g~~2.07(h) in such form as may be approved from time to time by the ~~Letter of Credit~~ L/C Provider; provided that the ~~Letter of Credit~~ L/C Provider shall have no obligation or right to provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, or (ii) the Series ~~2021~~2025-1 Class A-1 ~~Outstanding Principal~~ Notes Exposure Amount would exceed the Series ~~2021~~2025-1 Class A-1 Notes Maximum Principal Amount. Notwithstanding anything herein to the contrary, if a requested Letter of Credit would cause the Series ~~2021~~2025-1 Class A-1 Outstanding Principal Amount attributable to ~~a Letter of Credit~~ the L/C Provider (in its capacity as Committed Note Purchaser and ~~Letter of Credit~~ L/C Provider) to exceed its Commitment Amount (an “L/C Commitment Excess”), the Investor Groups shall effectuate a reallocation of the Series ~~2021~~2025-1 Class A-1 Outstanding Principal Amounts to the extent necessary so that, immediately after such requested Letter of Credit is issued, no L/C Commitment Excess would exist; provided that the Co-Issuers shall not be liable for any Breakage Amounts resulting solely from any such reallocations. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $25,000 or, if less than $25,000, shall bear a reasonable administrative fee to be agreed upon by the Co-Issuers and the ~~Letter of Credit~~ L/C Provider and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ten (10) Business Days prior to the Commitment Termination Date (the “Required Expiration Date”); provided that any Letter of Credit may provide for the automatic ~~extensions~~ renewal thereof for additional periods, each individually not to exceed one year (which shall in no event extend beyond the Required Expiration Date) unless the ~~Letter of Credit~~ L/C Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be renewed; ~~provided further~~ provided, further, that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the Co-Issuers in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory to the ~~Letter of Credit Provider in its sole and absolute discretion have been made with the Letter of Credit~~ L/C Provider (and, if the ~~Letter of Credit~~ L/C Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) in its sole and absolute discretion have been made with the L/C Provider pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each ~~Series 2021-1~~ Interest Reserve Letter of Credit shall (1) name each of (A) the ~~Indenture~~ Trustee, for the benefit of the Senior Noteholders or the Senior Subordinated Noteholders, as applicable, and (B) the Control Party, as the beneficiary thereof; (2) allow the ~~Indenture~~ Trustee or the Control Party to submit a notice of drawing in respect of such ~~Series 2021-1~~ Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable, pursuant to the ~~Indenture;~~ Indenture and (3) indicate by its terms that the proceeds in respect of drawings under such ~~Series 2021-1~~ Interest Reserve Letter of Credit shall be paid directly into the Senior Notes Interest Reserve Account or ~~otherwise used to pay Required~~ the Senior Subordinated Notes Interest Reserve ~~Draw Amounts in accordance with Sections 5.01(c) of the Indenture~~Account, as applicable. The ~~Letter of Credit~~ L/C Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the ~~Letter of Credit~~ L/C Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (ab) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the Co-Issuers shall issue and shall cause the ~~Indenture~~ Trustee to authenticate the Series ~~2021~~2025-1 Class A-1 L/C ~~Notes~~Note, which the Co-Issuers shall deliver to the ~~Letter of Credit Providers~~ L/C Provider on the Series ~~2021~~2025-1 Closing Date; provided that, if such ~~Series 2021-1 Class L/C~~ Note is an Uncertificated Note, the ~~Indenture~~ Trustee shall instead register it as described in Section ~~2.01(a~~4.01(e) of the ~~Indenture~~Series 2025-1 Supplement. Such Series ~~2021~~2025-1 Class A-1 L/C Note shall be dated the Series ~~2021~~2025-1 Closing Date, shall be registered in the name of the ~~Letter of Credit~~ L/C Provider or in such other name or nominee as the ~~Letter of Credit~~ L/C Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 the Series 2025-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and ~~(unless it is an Uncertificated Note)~~ shall be duly authenticated in accordance with the provisions of the Indenture. ~~The~~ Each issuance ~~and sale~~ of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series ~~2021~~2025-1 Closing Date will constitute ~~a Borrowing~~ an Increase in the outstanding principal amount evidenced by the Series ~~2021~~2025-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of ~~Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount~~Credit. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series ~~2021~~2025-1 Class A-1 L/C Note and shall be deemed to be Series ~~2021~~2025-1 Class A-1 Outstanding Principal Amounts ~~(in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount)~~ for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for ~~the~~ purposes of accrual of interest. Subject to the terms of this ~~Agreement~~Agreement and the Series 2025-1 Supplement, each ~~drawing~~ issuance of a Letter of Credit will constitute a ~~“L/C~~ Subfacility ~~Increase”~~ Increase in the outstanding principal amount evidenced by the Series ~~2021~~2025-1 Class A-1 L/C Note and the expiration of any Letter of Credit or reimbursements of any Unreimbursed L/C Drawings thereunder or other circumstances resulting in the permanent reduction in any Undrawn L/C Face Amounts from time to time will constitute a ~~“L/C~~ Subfacility ~~Decrease”~~ Decrease in the outstanding principal amount evidenced by the Series ~~2021~~2025-1 Class A-1 L/C Note. ~~Each Letter of Credit~~ The L/C Provider and the Co-Issuers agree to promptly notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee of any such decreases for which notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent is not otherwise provided hereunder. (bc) The Co-Issuers may (or shall cause the Manager on its behalf to) from time to time request that ~~any Letter of Credit~~ the L/C Provider provide a new Letter of Credit by delivering to the ~~Letter of Credit~~ L/C Provider at its address for notices specified herein an application therefor (in the form required by the applicable ~~Letter of Credit Provider or~~ L/C Issuing ~~Bank,~~ Bank as ~~applicable~~ notified to the Co-Issuers by the L/C Provider) (an “Application”), completed to the satisfaction of the ~~Letter of Credit~~ L/C Provider, and such other certificates, documents and other papers and information as the ~~Letter of Credit~~ L/C Provider may reasonably ~~request~~request on behalf of the L/C Issuing Bank. In addition, the letters of credit set forth in Schedule IV attached hereto shall be deemed to be Letters of Credit provided and issued by the L/C Provider indicated therein on the Series 2025-1 Closing Date (so long as such letter of credit would have been permitted to have been issued hereunder but for the date of its issuance). Upon receipt of any completed Application, the ~~Letter of Credit~~ L/C Provider will notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration of the requested Letter of Credit (which shall comply with Section ~~2.06(a~~2.07(a) and (i)) and, subject to the other conditions set forth herein and in the Series 2025-1 Supplement and upon receipt of written confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent (based, with respect to any portion of the Series ~~2021~~2025-1 Class A-1 Outstanding ~~L/C~~ Subfacility Amount held by any Person other than the ~~Series 2021-1 Class A-1~~ Administrative Agent, solely on written notices received by the ~~Series 2021-1 Class A-1~~ Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series ~~2021~~2025-1 Class A-1 Outstanding Principal Amount would not exceed the Series ~~2021~~2025-1 Class A-1 Notes Maximum Principal Amount (provided that the ~~Letter of Credit~~ L/C Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the ~~Series 2021-1 Class A-1~~ Administrative Agent for purposes of determining whether the ~~Letter of Credit~~ L/C Provider received such prior written confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent with respect to any Letter of Credit), the ~~Letter of Credit~~ L/C Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the ~~Letter of Credit~~ L/C Provider be required to provide any Letter of Credit earlier than three ~~(3)~~ Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section ~~2.06(a~~2.07(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the ~~Letter of Credit~~ L/C Provider and the Co-Issuers. The ~~Letter of Credit~~ L/C Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the ~~Series 2021-1 Class A-1~~ Administrative Agent) promptly following the issuance thereof. ~~Each Letter of Credit~~ The L/C Provider shall promptly furnish to the ~~Series 2021-1 Class A-1~~ Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the ~~Indenture~~ Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (cd) The Co-Issuers shall pay to the ~~Letter of Credit~~ L/C Provider the L/C ~~Monthly~~ Quarterly Fees (as defined in the Series ~~2021~~2025-1 Class A-1 ~~Notes~~ VFN Fee Letter, the “L/C ~~Monthly~~ Quarterly Fees”) in accordance with the terms of the Series ~~2021~~2025-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. In addition, the Co-Issuers shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes VFN Fee Letter and subject to the Priority of Payments. (de) [Reserved]. (f) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (eg) The Co-Issuers may, upon at least three (3) Business Days’ notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~applicable Letter of Credit~~ L/C Provider, effect a permanent reduction in the ~~related~~ L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Co-Issuers in writing and with the prior written consent of the ~~Letter of Credit~~ L/C Provider and the ~~Series 2021-1 Class A-1~~ Administrative Agent, the ~~Letter of Credit~~ L/C Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the Outstanding Series ~~2021~~2025-1 Class A-1 ~~Advance Notes~~ Note Advances, the Swingline Commitment and the L/C Commitment does not exceed the aggregate amount of the Commitments; provided, further, that prior to any increase in the Swingline Commitment, the Co-Issuers and the Trustee will enter into an amendment to the Series 2025-1 Supplement permitting such L/C Commitment. (fh) ~~Each Letter of Credit~~ The L/C Provider shall satisfy its obligations under this Section ~~2.06~~ 2.07 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate ~~as long as any~~ if the L/C Issuing Bank Rating Test is satisfied with respect to such ~~Letter~~ Affiliate, and the issuance of ~~Credit issued would not be an Ineligible Interest Reserve~~ such Letter of Credit. If ~~any~~ the L/C Issuing Bank Rating Test is not satisfied with respect to such ~~Letter~~ Affiliate, and the issuance of ~~Credit would be an Ineligible Interest Reserve~~ such Letter of Credit, a Person selected by the Co-Issuers (at the ~~reasonable~~ expense of the Co-Issuers) shall issue such Letter of Credit; provided that ~~any~~ such Person and issuance of such Letter of Credit ~~issued by such Person would not be an Ineligible Interest Reserve Letter of Credit~~ satisfies the L/C Issuing Bank Rating Test (the ~~Letter of Credit~~ L/C Provider (or such Affiliate of the ~~Letter of Credit~~ L/C Provider) or such other Person selected by the Co-Issuers (at the ~~reasonable~~ expense of the Co-Issuers), in each case in its capacity as the ~~Co-Issuers~~ issuer of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). . The “L/C Issuing Bank Rating Test” is a test that is satisfied with respect to a Person issuing a Letter of Credit if the Person is a U.S. commercial bank that has, at the time of the issuance of such Letter of Credit, (gi) a short-term certificate of deposit rating of not less than “A-2” (or then equivalent grade) from S&P and (ii) a long-term unsecured debt rating of not less than “BBB” (or then equivalent grade) from S&P or such other minimum long-term unsecured debt rating as may be reasonably required by the beneficiary or beneficiaries of such proposed Letter of Credit. Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Co-Issuers in order to have any ~~Letter~~ letter of ~~Credit~~ credit issued by a Person selected by the Co-Issuers pursuant to this Section ~~2.06(g~~2.07(h) or Section 5.17 of the Base Indenture be a “Letter of Credit” that has been issued hereunder and such Person selected by the Co-Issuers be an “L/C Issuing Bank”. (h) Each Letter of Credit Provider and, if the Letter of Credit Provider is not the L/C Issuing Bank for any Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2021-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) Each Series 2021-1 Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.04 of the I

Appears in 1 contract

Sources: Class a 1 Note Purchase Agreement (Dine Brands Global, Inc.)

L/C Commitment. (a) Subject to the terms and conditions hereof, ~~each Letter of Credit~~ the L/C Provider (or its permitted ~~successors and~~ assigns pursuant to Section 9.17), in reliance on the agreements of the ~~Committed~~ Note Purchasers set forth in Sections ~~2.07~~ 2.08 and ~~2.08~~2.09, ~~agrees~~ may, in its sole discretion and subject to the consent of each Investor Group, and during a Temporary Commitment Availability Period, shall (in an amount not to exceed up to the lesser of the (x) L/C Commitment or (y) undrawn portion of the Series 2022-1 Class A-1 Notes Maximum Principal Amount), provide standby letters of credit, including Interest Reserve Letters of Credit ~~or other standby letters of credit requested by the Co-Issuers and agreed upon by Letter of Credit Provider in its sole discretion~~ (~~together with the Interest Reserve Letters of Credit~~ each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the ~~Co-Issuers~~ Issuer or its designee on any Business Day ~~at any time until~~ during the period commencing on the Series 2022-1 Closing Date and ending on the date that is ~~ten~~ thirty (1030) Business Days prior to the Commitment Termination Date to be issued in accordance with Section ~~2.06(g~~2.07(h) in such form as may be approved from time to time by the ~~Letter of Credit~~ L/C Provider; provided that the ~~Letter of Credit~~ L/C Provider shall have no obligation or right to provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C ~~Commitment,~~ Commitment or (ii) the Series ~~2021~~2022-1 Class A-1 Outstanding Principal Amount would exceed the Series ~~2021~~2022-1 Class A-1 Notes Maximum Principal Amount. Notwithstanding anything herein to the contrary, if a requested Letter of Credit would cause the Series 2021-1 Class A-1 Outstanding Principal Amount attributable to a Letter of Credit Provider (in its capacity as Committed Note Purchaser and Letter of Credit Provider) to exceed its Commitment Amount (an “L/C Commitment Excess”), the Investor Groups shall effectuate a reallocation of the Series 2021-1 Class A-1 Outstanding Principal Amounts to the extent necessary so that, immediately after such requested Letter of Credit is issued, no L/C Commitment Excess would exist; provided that the Co-Issuers shall not be liable for any Breakage Amounts resulting solely from such reallocations. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $~~25,000~~ 1 million or, if less than $~~25,000~~1 million, shall bear a reasonable administrative fee to be agreed upon by the ~~Co-Issuers~~ Issuer and the ~~Letter of Credit~~ L/C Provider and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ten (10) Business Days prior to the Commitment Termination Date (the “Required Expiration Date”); provided that any Letter of Credit may provide for the automatic ~~extensions~~ renewal thereof for additional periods, each individually not to exceed one year (which shall in no event extend beyond the Required Expiration Date) unless the ~~Letter of Credit~~ L/C Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be renewed; provided further that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the ~~Co-Issuers~~ Issuer in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory to the ~~Letter of Credit~~ L/C Provider in its sole and absolute discretion have been made with the ~~Letter of Credit~~ L/C Provider (and, if the ~~Letter of Credit~~ L/C Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each Series 2021-1 Interest Reserve Letter of Credit shall (1) name the Indenture Trustee, for the benefit of the Noteholders, as the beneficiary thereof; (2) allow the Indenture Trustee to submit a notice of drawing in respect of such Series 2021-1 Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Interest Reserve Account, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such Series 2021-1 Interest Reserve Letter of Credit shall be paid directly into the Interest Reserve Account or otherwise used to pay Required Interest Reserve Draw Amounts in accordance with Sections 5.01(c) of the Indenture. The ~~Letter of Credit~~ L/C Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the ~~Letter of Credit~~ L/C Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (ab) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the ~~Co-Issuers shall issue~~ Issuer issued and ~~shall cause~~ caused the ~~Indenture~~ Trustee to authenticate the Series ~~2021~~2022-1 Class A-1 L/C ~~Notes~~Note, which the ~~Co-Issuers shall deliver~~ Issuer delivered to the ~~Letter of Credit Providers~~ L/C Provider on the Series ~~2021~~2022-1 Closing Date; provided that, if such Series ~~2021~~2022-1 Class A-1 L/C Note is an Uncertificated Note, the ~~Indenture~~ Trustee ~~shall~~ instead ~~register~~ registered it as described in Section ~~2.01(a~~4.1(f) of the ~~Indenture~~Series 2022-1 Supplement. Such Series ~~2021~~2022-1 Class A-1 L/C Note ~~shall be~~ is dated the Series ~~2021~~2022-1 Closing Date, ~~shall be~~ is registered in the name of the ~~Letter of Credit~~ L/C Provider or in such other name or nominee as the ~~Letter of Credit~~ L/C Provider ~~may request~~requested, ~~shall have~~ has a maximum principal amount equal to the L/C Commitment, ~~shall have~~ had an initial outstanding principal amount equal to $0 the Series 2022-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and (unless it is an Uncertificated Note) ~~shall be~~ was duly authenticated in accordance with the provisions of the Indenture. ~~The~~ Each issuance ~~and sale~~ of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series ~~2021~~2022-1 Closing Date will constitute ~~a Borrowing~~ an Increase in the outstanding principal amount evidenced by the Series ~~2021~~2022-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of ~~Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount~~Credit. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series ~~2021~~2022-1 Class A-1 L/C Note and shall be deemed to be Series ~~2021~~2022-1 Class A-1 Outstanding Principal Amounts ~~(in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount)~~ for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for ~~the~~ purposes of accrual of interest. Subject to the terms of this ~~Agreement~~Agreement and the Series 2022-1 Supplement, each ~~drawing~~ issuance of a Letter of Credit will constitute a ~~“L/C~~ Subfacility ~~Increase”~~ Increase in the outstanding principal amount evidenced by the Series ~~2021~~2022-1 Class A-1 L/C Note and the expiration of any Letter of Credit or reimbursements of any Unreimbursed L/C Drawings thereunder or other circumstances resulting in the permanent reduction in any Undrawn L/C Face Amounts from time to time will constitute a ~~“L/C~~ Subfacility ~~Decrease”~~ Decrease in the outstanding principal amount evidenced by the Series ~~2021~~2022-1 Class A-1 L/C Note. ~~Each Letter of Credit~~ The L/C Provider and the ~~Co-Issuers~~ Issuer agree to promptly notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee of any such decreases for which notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent is not otherwise provided hereunder. (bc) The ~~Co-Issuers~~ Issuer may (or shall cause the Manager on its behalf to) from time to time request that ~~any Letter of Credit~~ the L/C Provider provide a new Letter of Credit by delivering to the ~~Letter of Credit~~ L/C Provider at its address for notices specified herein an application therefor (in the form required by the applicable ~~Letter of Credit Provider or~~ L/C Issuing ~~Bank,~~ Bank as ~~applicable~~ notified to the Issuer by the L/C Provider) (an “Application”), completed to the satisfaction of the ~~Letter of Credit~~ L/C Provider, and such other certificates, documents and other papers and information as the ~~Letter of Credit~~ L/C Provider may reasonably ~~request~~request on behalf of the L/C Issuing Bank. Upon receipt of any completed Application, the ~~Letter of Credit~~ L/C Provider will notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration date of the requested Letter of Credit (which shall comply with Section ~~2.06(a~~2.07(a) and (i)) and, subject to the other conditions set forth herein and in the Series 2022-1 Supplement and upon receipt of written confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent (based, with respect to any portion of the Series ~~2021~~2022-1 Class A-1 Outstanding ~~L/C~~ Subfacility Amount held by any Person other than the ~~Series 2021-1 Class A-1~~ Administrative Agent, solely on written notices received by the ~~Series 2021-1 Class A-1~~ Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series ~~2021~~2022-1 Class A-1 Outstanding Principal Amount would not exceed the Series ~~2021~~2022-1 Class A-1 Notes Maximum Principal Amount (provided that the ~~Letter of Credit~~ L/C Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the ~~Series 2021-1 Class A-1~~ Administrative Agent for purposes of determining whether the ~~Letter of Credit~~ L/C Provider received such prior written confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent with respect to any Letter of Credit), the ~~Letter of Credit~~ L/C Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the ~~Letter of Credit~~ L/C Provider be required to provide any Letter of Credit earlier than three (3) Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section ~~2.06(a~~2.07(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the ~~Letter of Credit~~ L/C Provider and the ~~Co-Issuers~~Issuer. The ~~Letter of Credit~~ L/C Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the ~~Series 2021-1 Class A-1~~ Administrative Agent) promptly following the issuance thereof. ~~Each Letter of Credit~~ The L/C Provider shall promptly furnish to the ~~Series 2021-1 Class A-1~~ Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the ~~Indenture~~ Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (cd) The ~~Co-Issuers~~ Issuer shall pay to the ~~Letter of Credit~~ L/C Provider the L/C ~~Monthly~~ Quarterly Fees (as defined in the Series ~~2021~~2022-1 Class A-1 Notes Fee Letter, the “L/C ~~Monthly~~ Quarterly Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. In addition, the Co-Issuers shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series 20212022-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. (de) [Reserved]. (f) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (eg) The ~~Co-Issuers~~ Issuer may, upon at least three (3) Business Days’ notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~applicable Letter of Credit~~ L/C Provider, effect a permanent reduction in the ~~related~~ L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the ~~Co-Issuers~~ Issuer in writing and with the prior written consent of the ~~Letter of Credit~~ L/C Provider and the ~~Series 2021-1 Class A-1~~ Administrative Agent, the ~~Letter of Credit~~ L/C Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the Outstanding Series ~~2021~~2022-1 Class A-1 ~~Advance Notes~~ Note Advances and the L/C Commitment does not exceed the aggregate amount of the Commitments. (fh) ~~Each Letter of Credit~~ The L/C Provider shall satisfy its obligations under this Section ~~2.06~~ 2.07 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate ~~as long as any~~ if the L/C Issuing Bank Rating Test is satisfied with respect to such ~~Letter~~ Affiliate, and the issuance of ~~Credit issued would not be an Ineligible Interest Reserve~~ such Letter of Credit. If ~~any~~ the L/C Issuing Bank Rating Test is not satisfied with respect to such ~~Letter~~ Affiliate, and the issuance of ~~Credit would be an Ineligible Interest Reserve~~ such Letter of Credit, a Person selected by the ~~Co-Issuers~~ Issuer (at the ~~reasonable~~ expense of the ~~Co-Issuers~~L/C Provider) shall issue such Letter of Credit; provided that ~~any~~ such Person and issuance of such Letter of Credit ~~issued by such Person would not be an Ineligible Interest Reserve Letter of Credit~~ satisfies the L/C Issuing Bank Rating Test (the ~~Letter of Credit~~ L/C Provider (or such Affiliate of the ~~Letter of Credit~~ L/C Provider) or such other Person selected by the ~~Co-Issuers~~ Issuer (at the ~~reasonable~~ expense of the ~~Co-Issuers~~L/C Provider), in each case in its capacity as the ~~Co-Issuers~~ issuer of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). . The “L/C Issuing Bank Rating Test” is a test that is satisfied with respect to a Person issuing a Letter of Credit if the Person is a U.S. commercial bank that has, at the time of the issuance of such Letter of Credit, (gi) a short-term certificate of deposit rating of not less than “A-2” (or then equivalent grade) from S&P and (ii) a long-term unsecured debt rating of not less than “BBB” (or then equivalent grade) from S&P or such other minimum long-term unsecured debt rating as may be reasonably required by the beneficiary or beneficiaries of such proposed Letter of Credit. Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the ~~Co-Issuers~~ Issuer in order to have any ~~Letter~~ letter of ~~Credit~~ credit issued by a Person selected by the ~~Co-Issuers~~ Issuer pursuant to this Section ~~2.06(g~~2.07(h) or Section 5.17 of the Base Indenture be a “Letter of Credit” that has been issued hereunder and such Person selected by the ~~Co-Issuers~~ Issuer be an “L/C Issuing Bank”~~. (h) Each~~ . If any Letter of Credit issued by an L/C Provider ~~and~~hereunder in favor of an insurance or other similar provider to any Wingstop Entity no longer satisfies such provider’s criteria for an eligible or otherwise conforming letter of credit for its particular purpose, if the Issuer may select an alternative Person to issue a replacement for such Letter of Credit; provided that such Person and issuance of such replacement Letter of Credit ~~Provider is not~~ satisfies the L/C Issuing Bank ~~for any~~ Rating Test, and such L/C Provider shall reasonably cooperate with the Issuer in connection with the termination and replacement of such Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2021-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) Each Series 2021-1 Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.04 of the I

Appears in 1 contract

Sources: Class a 1 Note Purchase Agreement (Wingstop Inc.)

L/C Commitment. (a) Subject to the terms and conditions hereof, ~~each Letter of Credit~~ the L/C Provider (or its permitted ~~successors and~~ assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections ~~2.07~~ 2.08 and ~~2.08~~2.09, agrees to provide standby letters of credit, including Interest Reserve Letters of Credit ~~or other standby letters of credit requested by the Co-Issuers and agreed upon by Letter of Credit Provider in its sole discretion~~ (~~together with the Interest Reserve Letters of Credit~~ each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the ~~Co-Issuers~~ Issuer or its designee on any Business Day ~~at any time until~~ during the period commencing on the Series 2018-1 Closing Date and ending on the date that is ten (10) Business Days prior to the Commitment Termination Date to be issued in accordance with Section ~~2.06(g~~2.07(h) in such form as may be approved from time to time by the ~~Letter of Credit~~ L/C Provider; provided that the ~~Letter of Credit~~ L/C Provider shall have no obligation or right to provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, or (ii) the Series ~~2021~~2018-1 Class A-1 Outstanding Principal Amount would exceed the Series ~~2021~~2018-1 Class A-1 Notes Maximum Principal ~~Amount. Notwithstanding anything herein to the contrary, if a requested Letter of Credit would cause~~ Amount or (iii) the Series ~~2021~~2018-1 Class A-1 Outstanding Principal Amount attributable to ~~a Letter of Credit~~ the L/C Provider (in its capacity as Committed Note Purchaser and ~~Letter of Credit~~ L/C Provider) to would exceed its Commitment Amount (an “L/C Commitment Excess”), the Investor Groups shall effectuate a reallocation of the Series 2021-1 Class A-1 Outstanding Principal Amounts to the extent necessary so that, immediately after such requested Letter of Credit is issued, no L/C Commitment Excess would exist; provided that the Co-Issuers shall not be liable for any Breakage Amounts resulting solely from such reallocationsAmount. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $25,000 or, if less than $25,000, shall bear a reasonable administrative fee to be agreed upon by the ~~Co-Issuers~~ Issuer and the ~~Letter of Credit~~ L/C Provider and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ten (10) Business Days prior to the Commitment Termination Date (the “Required Expiration Date”); provided that any Letter of Credit may provide for the automatic ~~extensions~~ renewal thereof for additional periods, each individually not to exceed one year (which shall in no event extend beyond the Required Expiration Date) unless the ~~Letter of Credit~~ L/C Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be renewed; provided further that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the ~~Co-Issuers~~ Issuer in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory to the ~~Letter of Credit~~ L/C Provider in its sole and absolute discretion have been made with the ~~Letter of Credit~~ L/C Provider (and, if the ~~Letter of Credit~~ L/C Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each Series 2021-1 Interest Reserve Letter of Credit shall (1) name the Indenture Trustee, for the benefit of the Noteholders, as the beneficiary thereof; (2) allow the Indenture Trustee to submit a notice of drawing in respect of such Series 2021-1 Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Interest Reserve Account, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such Series 2021-1 Interest Reserve Letter of Credit shall be paid directly into the Interest Reserve Account or otherwise used to pay Required Interest Reserve Draw Amounts in accordance with Sections 5.01(c) of the Indenture. The ~~Letter of Credit~~ L/C Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the ~~Letter of Credit~~ L/C Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (ab) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the ~~Co-Issuers~~ Issuer shall issue and shall cause the ~~Indenture~~ Trustee to authenticate the Series ~~2021~~2018-1 Class A-1 L/C Notes, which the ~~Co-Issuers~~ Issuer shall deliver to the ~~Letter of Credit Providers~~ L/C Provider on the Series ~~2021~~2018-1 Closing Date~~; provided that, if such Series 2021-1 Class L/C Note is an Uncertificated Note, the Indenture Trustee shall instead register it as described in Section 2.01(a) of the Indenture~~. Such Series ~~2021~~2018-1 Class A-1 L/C Note shall be dated the Series ~~2021~~2018-1 Closing Date, shall be registered in the name of the ~~Letter of Credit~~ L/C Provider or in such other name or nominee as the ~~Letter of Credit~~ L/C Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 the Series 2018-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and ~~(unless it is an Uncertificated Note)~~ shall be duly authenticated in accordance with the provisions of the Indenture. ~~The~~ Each issuance ~~and sale~~ of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series ~~2021~~2018-1 Closing Date will constitute ~~a Borrowing~~ an Increase in the outstanding principal amount evidenced by the Series ~~2021~~2018-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of ~~Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount~~Credit. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series ~~2021~~2018-1 Class A-1 L/C Note and shall be deemed to be Series ~~2021~~2018-1 Class A-1 Outstanding Principal Amounts ~~(in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount)~~ for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for ~~the~~ purposes of accrual of interest. Subject to the terms of this ~~Agreement~~Agreement and the Series 2018-1 Supplement, each ~~drawing~~ issuance of a Letter of Credit will constitute a ~~“L/C~~ Subfacility ~~Increase”~~ Increase in the outstanding principal amount evidenced by the Series ~~2021~~2018-1 Class A-1 L/C Note and the expiration of any Letter of Credit or reimbursements of any Unreimbursed L/C Drawings thereunder or other circumstances resulting in the permanent reduction in any Undrawn L/C Face Amounts from time to time will constitute a ~~“L/C~~ Subfacility ~~Decrease”~~ Decrease in the outstanding principal amount evidenced by the Series ~~2021~~2018-1 Class A-1 L/C Note. ~~Each Letter of Credit~~ The L/C Provider and the ~~Co-Issuers~~ Issuer agree to promptly notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee of any such decreases for which notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent is not otherwise provided hereunder. (bc) The ~~Co-Issuers~~ Issuer may (or shall cause the Manager on its behalf to) from time to time request that ~~any Letter of Credit~~ the L/C Provider provide a new Letter of Credit by delivering to the ~~Letter of Credit~~ L/C Provider at its address for notices specified herein an application therefor (in the form required by the applicable ~~Letter of Credit Provider or~~ L/C Issuing ~~Bank,~~ Bank as ~~applicable~~ notified to the Issuer by the L/C Provider) (an “Application”), completed to the satisfaction of the ~~Letter of Credit~~ L/C Provider, and such other certificates, documents and other papers and information as the ~~Letter of Credit~~ L/C Provider may reasonably ~~request~~request on behalf of the L/C Issuing Bank. Upon receipt of any completed Application, the ~~Letter of Credit~~ L/C Provider will notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration of the requested Letter of Credit (which shall comply with Section ~~2.06(a~~2.07(a) and (i)) and, subject to the other conditions set forth herein and in the Series 2018-1 Supplement and upon receipt of written confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent (based, with respect to any portion of the Series ~~2021~~2018-1 Class A-1 Outstanding ~~L/C~~ Subfacility Amount held by any Person other than the ~~Series 2021-1 Class A-1~~ Administrative Agent, solely on written notices received by the ~~Series 2021-1 Class A-1~~ Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series ~~2021~~2018-1 Class A-1 Outstanding Principal Amount would not exceed the Series ~~2021~~2018-1 Class A-1 Notes Maximum Principal Amount (provided that the ~~Letter of Credit~~ L/C Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the ~~Series 2021-1 Class A-1~~ Administrative Agent for purposes of determining whether the ~~Letter of Credit~~ L/C Provider received such prior written confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent with respect to any Letter of Credit), the ~~Letter of Credit~~ L/C Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the ~~Letter of Credit~~ L/C Provider be required to provide any Letter of Credit earlier than three ~~(3)~~ Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section ~~2.06(a~~2.07(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the ~~Letter of Credit~~ L/C Provider and the ~~Co-Issuers~~Issuer. The ~~Letter of Credit~~ L/C Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the ~~Series 2021-1 Class A-1~~ Administrative Agent) promptly following the issuance thereof. ~~Each Letter of Credit~~ The L/C Provider shall promptly furnish to the ~~Series 2021-1 Class A-1~~ Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the ~~Indenture~~ Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (cd) The ~~Co-Issuers~~ Issuer shall pay to the ~~Letter of Credit~~ L/C Provider the L/C ~~Monthly~~ Quarterly Fees (as defined in the Series ~~2021~~2018-1 Class A-1 Notes Fee Letter, the “L/C ~~Monthly~~ Quarterly Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. In addition, the Co-Issuers shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series 20212018-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. (de) [Reserved]. (f) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (eg) The ~~Co-Issuers~~ Issuer may, upon at least three (3) Business Days’ notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~applicable Letter of Credit~~ L/C Provider, effect a permanent reduction in the ~~related~~ L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the ~~Co-Issuers~~ Issuer in writing and with the prior written consent of the ~~Letter of Credit~~ L/C Provider and the ~~Series 2021-1 Class A-1~~ Administrative Agent, the ~~Letter of Credit~~ L/C Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the Outstanding Series ~~2021~~2018-1 Class A-1 ~~Advance Notes~~ Note Advances, the Swingline Commitment and the L/C Commitment does not exceed the aggregate amount of the Commitments. (fh) ~~Each Letter of Credit~~ The L/C Provider shall satisfy its obligations under this Section ~~2.06~~ 2.07 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate ~~as long as any~~ if the L/C Issuing Bank Rating Test is satisfied with respect to such ~~Letter~~ Affiliate, and the issuance of ~~Credit issued would not be an Ineligible Interest Reserve~~ such Letter of Credit. If ~~any~~ the L/C Issuing Bank Rating Test is not satisfied with respect to such ~~Letter~~ Affiliate, and the issuance of ~~Credit would be an Ineligible Interest Reserve~~ such Letter of Credit, a Person selected by the ~~Co-Issuers~~ Issuer (at the ~~reasonable~~ expense of the ~~Co-Issuers~~L/C Provider) shall issue such Letter of Credit; provided that ~~any~~ such Person and issuance of such Letter of Credit ~~issued by such Person would not be an Ineligible Interest Reserve Letter of Credit~~ satisfies the L/C Issuing Bank Rating Test (the ~~Letter of Credit~~ L/C Provider (or such Affiliate of the ~~Letter of Credit~~ L/C Provider) or such other Person selected by the ~~Co-Issuers~~ Issuer (at the ~~reasonable~~ expense of the ~~Co-Issuers~~L/C Provider), in each case in its capacity as the ~~Co-Issuers~~ issuer of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). . The “L/C Issuing Bank Rating Test” is a test that is satisfied with respect to a Person issuing a Letter of Credit if the Person is a U.S. commercial bank that has, at the time of the issuance of such Letter of Credit, (gi) a short-term certificate of deposit rating of not less than “A-2” (or then equivalent grade) from S&P and (ii) a long-term unsecured debt rating of not less than “BBB” (or then equivalent grade) from S&P or such other minimum long-term unsecured debt rating as may be reasonably required by the beneficiary or beneficiaries of such proposed Letter of Credit. Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the ~~Co-Issuers~~ Issuer in order to have any ~~Letter~~ letter of ~~Credit~~ credit issued by a Person selected by the ~~Co-Issuers~~ Issuer pursuant to this Section ~~2.06(g~~2.07(h) or Section 5.17 of the Base Indenture be a “Letter of Credit” that has been issued hereunder and such Person selected by the ~~Co-Issuers~~ Issuer be an “L/C Issuing Bank”~~. (h) Each~~ . If any Letter of Credit issued by an L/C Provider ~~and~~hereunder in favor of an insurance or other similar provider to any Wingstop Entity no longer satisfies such provider’s criteria for an eligible or otherwise conforming letter of credit for its particular purpose, if the Issuer may select an alternative Person to issue a replacement for such Letter of Credit; provided that such Person and issuance of such replacement Letter of Credit ~~Provider is not~~ satisfies the L/C Issuing Bank ~~for any~~ Rating Test, and such L/C Provider shall reasonably cooperate with the Issuer in connection with the termination and replacement of such Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2021-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) Each Series 2021-1 Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.04 of the I

Appears in 1 contract

Sources: Class a 1 Note Purchase Agreement (Wingstop Inc.)

L/C Commitment. (a) Subject to the terms and conditions hereof, ~~each Letter of Credit~~ the L/C Provider (or its permitted ~~successors and~~ assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections ~~2.07~~ 2.08 and ~~2.08~~2.09, agrees to provide standby letters of credit, including Interest Reserve Letters of Credit ~~or other standby letters of credit requested by the Co-Issuers and agreed upon by Letter of Credit Provider in its sole discretion~~ (~~together with the Interest Reserve Letters of Credit~~ each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the ~~Co-Issuers or its designee~~ Issuer on any Business Day ~~at any time until~~ during the period commencing on the Series 2019-3 Closing Date and ending on the date that is ten ~~(10)~~ Business Days prior to the Commitment Termination Date to be issued in accordance with Section ~~2.06(g~~2.07(h) in such form as may be approved from time to time by the ~~Letter of Credit~~ L/C Provider; provided that the ~~Letter of Credit~~ L/C Provider shall have no obligation or right to provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, or (ii) the Series ~~2021~~2019-1 3 Class A-1 Outstanding Principal Amount would exceed the Series ~~2021~~2019-1 3 Class A-1 Notes Maximum Principal ~~Amount. Notwithstanding anything herein to the contrary, if a requested Letter of Credit would cause~~ Amount or (iii) the Series ~~2021~~2019-1 3 Class A-1 Outstanding Principal Amount attributable to ~~a Letter of Credit~~ the L/C Provider (in its capacity as Committed Note Purchaser and ~~Letter of Credit~~ L/C Provider) to would exceed its Commitment Amount (an “L/C Commitment Excess”), the Investor Groups shall effectuate a reallocation of the Series 2021-1 Class A-1 Outstanding Principal Amounts to the extent necessary so that, immediately after such requested Letter of Credit is issued, no L/C Commitment Excess would exist; provided that the Co-Issuers shall not be liable for any Breakage Amounts resulting solely from such reallocationsAmount. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $~~25,000 or~~100,000 (unless otherwise agreed by the L/C Provider, ~~if less than $25,000, shall bear~~ together with a reasonable administrative fee to be agreed ~~upon by the Co-Issuers and the Letter of Credit Provider~~ upon) and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ten (10) Business Days prior to the Commitment Termination Date (the “Required Expiration Date”); provided that any Letter of Credit may provide for the automatic ~~extensions~~ renewal thereof for additional periods, each individually not to exceed one year (which shall in no event extend beyond the Required Expiration Date) unless the ~~Letter of Credit~~ L/C Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be renewed; provided further that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the ~~Co-Issuers~~ Issuer in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory to the ~~Letter of Credit~~ L/C Provider in its sole and absolute discretion have been made with the ~~Letter of Credit~~ L/C Provider (and, if the ~~Letter of Credit~~ L/C Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each ~~Series 2021-1~~ Interest Reserve Letter of Credit shall (1) name each of (A) the ~~Indenture~~ Trustee, for the benefit of the Senior Noteholders or the Senior Subordinated Noteholders, as applicable, and (B) the Control Party, as the beneficiary thereof; (2) allow the ~~Indenture~~ Trustee or the Control Party to submit a notice of drawing in respect of such ~~Series 2021-1~~ Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such ~~Series 2021-1~~ Interest Reserve Letter of Credit shall be paid directly into the Senior Notes Interest Reserve Account or ~~otherwise used to pay Required~~ the Senior Subordinated Notes Interest Reserve ~~Draw Amounts in accordance with Sections 5.01(c)~~ Account, as applicable, or such other Account, as permitted pursuant to the terms of the Indenture. The ~~Letter of Credit~~ L/C Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the ~~Letter of Credit~~ L/C Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (ab) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the ~~Co-Issuers~~ Issuer shall issue and shall cause the ~~Indenture~~ Trustee to authenticate the initial Series ~~2021~~2019-1 3 Class A-1 L/C ~~Notes~~Note, which the ~~Co-Issuers~~ Issuer shall deliver to the ~~Letter of Credit Providers~~ L/C Provider on the Series ~~2021~~2019-1 3 Closing Date~~; provided that, if such Series 2021-1 Class L/C Note is an Uncertificated Note, the Indenture Trustee shall instead register it as described in Section 2.01(a) of the Indenture~~. Such initial Series ~~2021~~2019-1 3 Class A-1 L/C Note shall be dated the Series ~~2021~~2019-1 3 Closing Date, shall be registered in the name of the ~~Letter of Credit~~ L/C Provider or in such other name or nominee as the ~~Letter of Credit~~ L/C Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 the Series 2019-3 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and ~~(unless it is an Uncertificated Note)~~ shall be duly authenticated in accordance with the provisions of the Indenture. ~~The~~ Each issuance ~~and sale~~ of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series ~~2021~~2019-1 3 Closing Date will constitute ~~a Borrowing~~ an Increase in the outstanding principal amount evidenced by the Series ~~2021~~2019-1 3 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of ~~Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount~~Credit. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series ~~2021~~2019-1 3 Class A-1 L/C Note and shall be deemed to be Series ~~2021~~2019-1 3 Class A-1 Outstanding Principal Amounts ~~(in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount)~~ for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for ~~the~~ purposes of accrual of interest. Subject to the terms of this ~~Agreement~~Agreement and the Series 2019-3 Supplement, each ~~drawing~~ issuance of a Letter of Credit will constitute a ~~“L/C~~ Subfacility ~~Increase”~~ Increase in the outstanding principal amount evidenced by the Series ~~2021~~2019-1 3 Class A-1 L/C Note and the expiration of any Letter of Credit or reimbursements of any Unreimbursed L/C Drawings thereunder or other circumstances resulting in the permanent reduction in any Undrawn L/C Face Amounts from time to time will constitute a ~~“L/C~~ Subfacility ~~Decrease”~~ Decrease in the outstanding principal amount evidenced by the Series ~~2021~~2019-1 3 Class A-1 L/C Note. ~~Each Letter of Credit~~ The L/C Provider and the ~~Co-Issuers~~ Issuer agree to promptly notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee of any such decreases for which notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent is not otherwise provided hereunder. (bc) The ~~Co-Issuers~~ Issuer may (or shall cause the Manager on its behalf to) from time to time request that ~~any Letter of Credit~~ the L/C Provider provide a new Letter of Credit by delivering to the ~~Letter of Credit~~ L/C Provider at its address for notices specified herein an ~~application~~ Application therefor (in the form required by the applicable ~~Letter of Credit Provider or~~ L/C Issuing ~~Bank,~~ Bank as ~~applicable (an “Application”~~notified to the Issuer by the L/C Provider), completed to the satisfaction of the ~~Letter of Credit~~ L/C Provider, and such other certificates, documents and other papers and information as the L/C Provider may reasonably request on behalf of the L/C Issuing Bank. Notwithstanding the foregoing sentence, the letter of credit set forth on Schedule IV hereto shall be deemed a Letter of Credit provided and issued by the L/C Provider ~~may reasonably request~~hereunder as of the Series 2019-3 Closing Date. Upon receipt of any completed Application, the ~~Letter of Credit~~ L/C Provider will notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration of the requested Letter of Credit (which shall comply with Section ~~2.06(a~~2.07(a) and (i)) and, subject to the other conditions set forth herein and in the Series 2019-3 Supplement and upon receipt of written confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent (based, with respect to any portion of the Series ~~2021~~2019-1 3 Class A-1 Outstanding ~~L/C~~ Subfacility Amount held by any Person other than the ~~Series 2021-1 Class A-1~~ Administrative Agent, solely on written notices received by the ~~Series 2021-1 Class A-1~~ Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series ~~2021~~2019-1 3 Class A-1 Outstanding Principal Amount would not exceed the Series ~~2021~~2019-1 3 Class A-1 Notes Maximum Principal Amount (provided that the ~~Letter of Credit~~ L/C Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the ~~Series 2021-1 Class A-1~~ Administrative Agent for purposes of determining whether the ~~Letter of Credit~~ L/C Provider received such prior written confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent with respect to any Letter of Credit), the ~~Letter of Credit~~ L/C Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the ~~Letter of Credit~~ L/C Provider be required to provide any Letter of Credit earlier than three ~~(3)~~ Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section ~~2.06(a~~2.07(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the ~~Letter of Credit~~ L/C Provider and the ~~Co-Issuers~~Issuer. The ~~Letter of Credit~~ L/C Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the ~~Series 2021-1 Class A-1~~ Administrative Agent) promptly following the issuance thereof. ~~Each Letter of Credit~~ The L/C Provider shall promptly furnish to the ~~Series 2021-1 Class A-1~~ Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the ~~Indenture~~ Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (cd) The ~~Co-Issuers~~ Issuer shall pay to the ~~Letter of Credit~~ L/C Provider the L/C ~~Monthly~~ Quarterly Fees (as defined in the Series ~~2021~~2019-1 3 Class A-1 Notes Fee Letter, the “L/C ~~Monthly~~ Quarterly Fees”) in accordance with the terms of the Series ~~2021~~2019-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. In addition, the Co-Issuers shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series 2021-1 3 Class A-1 Notes Fee Letter and subject to the Priority of Payments. (de) [Reserved]. (f) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (eg) The ~~Co-Issuers~~ Issuer may, upon at least three (3) Business Days’ notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~applicable Letter of Credit~~ L/C Provider, effect a permanent reduction in the ~~related~~ L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the ~~Co-Issuers~~ Issuer in writing and with the prior written consent of the ~~Letter of Credit~~ L/C Provider and the ~~Series 2021-1 Class A-1~~ Administrative Agent, the ~~Letter of Credit~~ L/C Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the ~~Outstanding~~ Series ~~2021~~2019-1 3 Class A-1 ~~Advance Notes~~ Outstanding Principal Amounts, the Swingline Commitment and the L/C Commitment does not exceed the aggregate ~~amount of the Commitments~~Commitment Amounts. (fh) ~~Each Letter of Credit~~ The L/C Provider shall satisfy its obligations under this Section ~~2.06~~ 2.07 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate ~~as long as any~~ if the L/C Issuing Bank Rating Test is satisfied with respect to such ~~Letter of Credit issued would not be an Ineligible Interest Reserve Letter of Credit~~Affiliate. If ~~any~~ the L/C Issuing Bank Rating Test is not satisfied with respect to such ~~Letter of Credit would be an Ineligible Interest Reserve Letter of Credit~~Affiliate, a Person selected by the ~~Co-Issuers~~ Issuer (at the ~~reasonable~~ expense of the ~~Co-Issuers~~L/C Provider) shall issue such Letter of Credit; provided that ~~any Letter of Credit issued by~~ such Person would not be an Ineligible Interest Reserve Letter of Credit (the Letter of Credit Provider (or such Affiliate of the Letter of Credit Provider) or such other Person selected by the Co-Issuers (at the reasonable expense of the Co-Issuers), in each case in its capacity as the Co-Issuers of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). (g) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Co-Issuers in order to have any Letter of Credit issued by a Person selected by the Co-Issuers pursuant to Section 2.06(g) be a “Letter of Credit” that has been issued hereunder and such Person selected by the Co-Issuers be an “L/C Issuing Bank”. (h) Each Letter of Credit Provider and, if the Letter of Credit Provider is not the L/C Issuing Bank for any Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2021-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) Each Series 2021-1 Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.04 of the Iissuance of

Appears in 1 contract

Sources: Class a 1 Note Purchase Agreement (Driven Brands Holdings Inc.)

L/C Commitment. (a) Subject to the terms and conditions hereof, ~~each Letter of Credit~~ the L/C Provider (or its permitted ~~successors and~~ assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections ~~2.07~~ 2.08 and ~~2.08~~2.09, agrees to provide standby letters of credit, including Interest Reserve Letters of Credit ~~or other standby letters of credit requested by the Co-Issuers and agreed upon by Letter of Credit Provider in its sole discretion~~ (~~together with the Interest Reserve Letters of Credit~~ each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Co-Issuers ~~or its designee~~ on any Business Day ~~at any time until~~ during the period commencing on the Series 2025-1 Closing Date and ending on the date that is ten (10) Business Days prior to the Commitment Termination Date to be issued in accordance with Section ~~2.06(g~~2.07(h) in such form as may be approved from time to time by the ~~Letter of Credit~~ L/C Provider; provided that the ~~Letter of Credit~~ L/C Provider shall have no obligation or right to provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C ~~Commitment,~~ Commitment or (ii) the Series ~~2021~~2025-1 Class A-1 Outstanding Principal Amount would exceed the Series ~~2021~~2025-1 Class A-1 ~~Notes~~ Maximum Principal Amount. Notwithstanding anything herein to the contrary, if a requested Letter of Credit would cause the Series ~~2021~~2025-1 Class A-1 Outstanding Principal Amount attributable to ~~a Letter of Credit~~ the L/C Provider (in its capacity as Committed Note Purchaser and ~~Letter of Credit~~ L/C Provider) to exceed its Commitment Amount (an “L/C Commitment Excess”), the Investor Groups shall effectuate a reallocation of the Series ~~2021~~2025-1 Class A-1 Outstanding Principal Amounts to the extent necessary so that, immediately after such requested Letter of Credit is issued, no L/C Commitment Excess would exist; provided that the Co-Issuers shall not be liable for any Breakage Amounts resulting solely from any such reallocations. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $25,000 or, if less than $25,000, shall bear a reasonable administrative fee to be agreed upon by the Co-Issuers and the ~~Letter of Credit~~ L/C Provider and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ~~ten~~ five (105) Business Days prior to the Commitment Termination Date (the “Required Expiration Date”); provided that any Letter of Credit may provide for the automatic ~~extensions~~ renewal thereof for additional periods, each individually not to exceed one year (which shall in no event extend beyond the Required Expiration Date) unless the ~~Letter of Credit~~ L/C Provider notifies ~~each~~ the beneficiary of such Letter of Credit at least ~~thirty (30)~~ 30 calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be renewed; ~~provided further~~ provided, further, that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the Co-Issuers in accordance with Section ~~4.02~~ 4.02(b) or 4.03 ~~as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit~~ as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory to the ~~Letter of Credit~~ L/C Provider in its sole and absolute discretion have been made with the ~~Letter of Credit~~ L/C Provider (and, if the ~~Letter of Credit~~ L/C Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each ~~Series 2021-1~~ Interest Reserve Letter of Credit shall (1) name the ~~Indenture~~ Trustee, for the benefit of the Senior Noteholders or the Senior Subordinated Noteholders, as applicable, as the beneficiary thereof; (2) allow the ~~Indenture~~ Trustee or the Control Party on its behalf to submit a notice of drawing in respect of such ~~Series 2021-1~~ Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable, pursuant to the ~~Indenture;~~ Indenture and (3) indicate by its terms that the proceeds in respect of drawings under such ~~Series 2021-1~~ Interest Reserve Letter of Credit shall be paid directly into the Senior Notes Interest Reserve Account or ~~otherwise used to pay Required~~ the Senior Subordinated Notes Interest Reserve ~~Draw Amounts in accordance with Sections 5.01(c) of the Indenture~~Account, as applicable. The ~~Letter of Credit~~ L/C Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the ~~Letter of Credit~~ L/C Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) ~~each~~ the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (ab) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the Co-Issuers shall issue and shall cause the ~~Indenture~~ Trustee to authenticate the initial Series ~~2021~~2025-1 Class A-1 L/C ~~Notes~~Note, which the Co-Issuers shall deliver to the ~~Letter of Credit Providers~~ L/C Provider on the Series ~~2021~~2025-1 Closing Date; provided that, if such Series ~~2021~~2025-1 Class A-1 L/C Note is an Uncertificated Note, the ~~Indenture~~ Trustee shall instead register it as described in Section ~~2.01(a~~4.01(f) of the ~~Indenture~~Series 2025-1 Supplement. Such initial Series ~~2021~~2025-1 Class A-1 L/C Note shall be dated the Series ~~2021~~2025-1 Closing Date, shall be registered in the name of the ~~Letter of Credit~~ L/C Provider or in such other name or nominee as the ~~Letter of Credit~~ L/C Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 the Series 2025-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and (unless it is an Uncertificated Note) shall be duly authenticated in accordance with the provisions of the Indenture. ~~The~~ Each issuance ~~and sale~~ of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series ~~2021~~2025-1 Closing Date will constitute ~~a Borrowing~~ an Increase in the outstanding principal amount evidenced by the Series ~~2021~~2025-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of ~~Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount~~Credit. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series ~~2021~~2025-1 Class A-1 L/C Note and shall be deemed to be Series ~~2021~~2025-1 Class A-1 Outstanding Principal Amounts ~~(in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount)~~ for all purposes of this Agreement, the Indenture and the other ~~Transaction~~ Related Documents other than, in the case of Undrawn L/C Face Amounts, for ~~the~~ purposes of accrual of interest. Subject to the terms of this ~~Agreement~~Agreement and the Series 2025-1 Supplement, ~~each drawing of a Letter of Credit will constitute a “L/C Subfacility Increase” in~~ the outstanding principal amount evidenced by the Series ~~2021~~2025-1 Class A-1 L/C Note ~~and~~ shall be increased by issuances of Letters of Credit or decreased by expirations thereof or reimbursements of drawings thereunder or other circumstances resulting in the permanent reduction in any ~~Unreimbursed~~ Undrawn L/C ~~Drawings thereunder will constitute a “~~Face Amounts from time to time. The L/C ~~Subfacility Decrease” in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note. Each Letter of Credit~~ Provider and the Co-Issuers agree to promptly notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee of any such decreases for which notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent is not otherwise provided hereunder. (bc) The Co-Issuers may (or shall cause the Manager on ~~its~~ their behalf to) from time to time request that ~~any Letter of Credit~~ the L/C Provider provide a new Letter of Credit by delivering to the ~~Letter of Credit~~ L/C Provider at its address for notices specified herein an ~~application~~ Application therefor (in the form required by the applicable ~~Letter of Credit Provider or~~ L/C Issuing ~~Bank,~~ Bank as ~~applicable (an “Application”~~notified to the Co-Issuers by the L/C Provider), completed to the satisfaction of the ~~Letter of Credit~~ L/C Provider, and such other certificates, documents and other papers and information as the ~~Letter~~ L/C Provider may request on behalf of the L/C Issuing Bank. Notwithstanding the foregoing sentence, the letters of credit set forth on Schedule IV hereto shall be deemed Letters of Credit provided and issued by the L/C Provider ~~may reasonably request~~hereunder as of the Series 2025-1 Closing Date. Upon receipt of any completed Application, the ~~Letter of Credit~~ L/C Provider will notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee in writing of the amount, the beneficiary ~~or beneficiaries~~ and the requested expiration of the requested Letter of Credit (which shall comply with ~~Section 2.06(a~~Sections 2.07(a) and (i)) and, subject to the other conditions set forth herein and in the Series 2025-1 Supplement and upon receipt of written confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent (based, with respect to any portion of the Series ~~2021~~2025-1 Class A-1 Outstanding ~~L/C~~ Subfacility Amount held by any Person other than the ~~Series 2021-1 Class A-1~~ Administrative Agent, solely on written notices received by the ~~Series 2021-1 Class A-1~~ Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series ~~2021~~2025-1 Class A-1 Outstanding Principal Amount would not exceed the Series ~~2021~~2025-1 Class A-1 ~~Notes~~ Maximum Principal Amount (provided that the ~~Letter of Credit~~ L/C Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the ~~Series 2021-1 Class A-1~~ Administrative Agent for purposes of determining whether the ~~Letter of Credit~~ L/C Provider received such prior written confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent with respect to any Letter of Credit), the ~~Letter of Credit~~ L/C Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the ~~Letter of Credit~~ L/C Provider be required to provide any Letter of Credit earlier than three (3) Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section ~~2.06(a~~2.07(a)) by issuing the original of such Letter of Credit to the beneficiary ~~or beneficiaries~~ thereof or as otherwise may be agreed to by the ~~Letter of Credit~~ L/C Provider and the Co-Issuers. The ~~Letter of Credit~~ L/C Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the ~~Series 2021-1 Class A-1~~ Administrative Agent) promptly following the issuance thereof. ~~Each Letter of Credit~~ The L/C Provider shall promptly furnish to the ~~Series 2021-1 Class A-1~~ Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the ~~Indenture~~ Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (cd) The Co-Issuers shall jointly and severally pay ratably to the ~~Letter of Credit Provider~~ Committed Note Purchasers the L/C ~~Monthly~~ Quarterly Fees (as defined in the Series ~~2021~~2025-1 Class A-1 ~~Notes~~ VFN Fee Letter, the “L/C ~~Monthly~~ Quarterly Fees”) in accordance with the terms of the Series ~~2021~~2025-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. In addition, the Co-Issuers shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes VFN Fee Letter and subject to the Priority of Payments. (de) [Reserved]. (f) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (eg) The Co-Issuers may, upon ~~at least~~ three (3) Business Days’ notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~applicable Letter of Credit~~ L/C Provider, effect a ~~permanent~~ reduction in the ~~related~~ L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Co-Issuers in writing and with the prior written consent of the ~~Letter of Credit~~ L/C Provider and the ~~Series 2021-1 Class A-1~~ Administrative Agent, the ~~Letter of Credit~~ L/C Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of ~~each of~~ the ~~Outstanding Series 2021-1 Class A-1 Advance Notes~~ Swingline Commitment and the L/C Commitment does not exceed the aggregate ~~amount of the Commitments~~Commitment Amount. (fh) ~~Each Letter of Credit~~ The L/C Provider shall satisfy its obligations under this Section ~~2.06~~ 2.07 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an ~~Affiliate as~~ Affiliate, so long as ~~any~~ the L/C Issuing Bank Rating Test is satisfied with respect to such ~~Letter~~ Affiliate and the issuance of ~~Credit issued would not be an Ineligible Interest Reserve~~ such Letter of Credit. If ~~any~~ the L/C Issuing Bank Rating Test is not satisfied with respect to such ~~Letter~~ Affiliate and the issuance of ~~Credit would be an Ineligible Interest Reserve~~ such Letter of Credit, the L/C Provider or a Person selected by (at the expense of the L/C Provider) the Co-Issuers ~~(at the reasonable expense of the Co-Issuers)~~ shall issue such Letter of Credit; provided that ~~any~~ such Person and issuance of such Letter of Credit ~~issued by such Person would not be an Ineligible Interest Reserve Letter of Credit~~ satisfies the L/C Issuing Bank Rating Test (the ~~Letter of Credit~~ L/C Provider (or such Affiliate of the L/C Provider) in its capacity as the issuer of such Letter of Credit ~~Provider)~~ or such other Person selected by the Co-Issuers ~~(at the reasonable expense of the Co-Issuers), in each case in its capacity as the Co-Issuers of such Letter of Credit~~ being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). (g) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Co-Issuers in order to have any Letter of Credit issued by a Person selected by the Co-Issuers pursuant to Section 2.06(g) be a “Letter of Credit” that has been issued hereunder and such Person selected by the Co-Issuers be an . The “L/C Issuing ~~Bank”. (h) Each~~ Bank Rating Test” is a test that is satisfied with respect to a Person issuing a Letter of Credit ~~Provider and,~~ if the ~~Letter~~ Person is a U.S. commercial bank that has, at the time of ~~Credit Provider is not~~ the ~~L/C Issuing Bank for any~~ issuance of such Letter of Credit, ~~the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if:~~ (i) ~~any order, judgment~~ a short-term certificate of deposit rating of not less than “P-2” from ▇▇▇▇▇’▇ and “A- 2” from S&P and (ii) a long-term unsecured debt rating of not less than “Baa2” from ▇▇▇▇▇’▇ or ~~decree~~ “BBB” from S&P or such other minimum long-term unsecured debt rating as may be reasonably required by the beneficiary of ~~any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the~~ such proposed Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2021-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) Each Series 2021-1 Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.04 of the I

Appears in 1 contract

Sources: Class a 1 Note Purchase Agreement (Dominos Pizza Inc)

L/C Commitment. (a) Subject to the terms and conditions hereof, each ~~Letter of Credit Provider (or its permitted successors and assigns pursuant to Section 9.17)~~Issuing Lender, in reliance on the agreements of the ~~Committed Note Purchasers~~ other Revolving Lenders set forth in ~~Sections 2.07 and 2.08~~Section 3.4(a), agrees to ~~provide Interest Reserve Letters of Credit or other standby~~ issue letters of credit ~~requested by the Co-Issuers and agreed upon by Letter of Credit Provider in its sole discretion~~ (~~together with the Interest Reserve Letters of Credit each, a “Letter of Credit” and, collectively, the~~ “Letters of Credit”) for the account of the CoBorrower or for the account of Holdings or any of its Restricted Subsidiaries (in which case the Borrower and Holdings or such Restricted Subsidiary, as applicable, shall be co-~~Issuers or its designee~~ applicants with respect to such Letter of Credit) on any Business Day ~~at any time until~~ during the period commencing on the Closing Date and ending on the date that is ~~ten~~ five (105) Business Days prior to the ~~Commitment~~ Revolving Termination Date ~~to be issued in accordance with Section 2.06(g)~~ in such form as may be reasonably approved from time to time by ~~the Letter of Credit Provider~~such Issuing Lender; provided that ~~the Letter of Credit Provider~~ no Issuing Lender shall have no any obligation ~~or right~~ to ~~provide~~ issue any Letter of Credit ~~on a requested issuance date~~ if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, or (ii) any Revolving Lender is at such time a Defaulting Lender, unless such Issuing Lender has entered into arrangements, including reallocation of such Lender’s Revolving Percentage of the ~~Series 2021-1 Class A-1 Outstanding Principal Amount would exceed~~ outstanding L/C Obligations pursuant to Section 2.27(a)(iv) or the ~~Series 2021-1 Class A-1 Notes Maximum Principal Amount. Notwithstanding anything herein~~ delivery of Cash Collateral, satisfactory to such Issuing Lender with the ~~contrary, if a requested~~ Borrower or such Lender to eliminate such Issuing Lender’s actual or potential Fronting Exposure (after giving effect to Section 2.27(a)(iv)) with respect to such Lender arising from either the Letter of Credit ~~would cause the Series 2021-1 Class A-1 Outstanding Principal Amount attributable~~ then proposed to a be issued or such Letter of Credit ~~Provider (in its capacity as Committed Note Purchaser~~ and ~~Letter of Credit Provider) to exceed its Commitment Amount (an “~~all other L/C ~~Commitment Excess”)~~Obligations as to which such Issuing Lender has actual or potential Fronting Exposure, as it may elect in its sole discretion, (iii) the ~~Investor Groups shall effectuate a reallocation~~ aggregate amount of the ~~Series 2021-1 Class A-1 Outstanding Principal Amounts to~~ Available Revolving Commitments would be less than zero or (iv) the ~~extent necessary so that, immediately after such requested Letter of Credit is issued, no~~ outstanding L/C ~~Commitment Excess~~ Obligations in respect of Letters of Credit issued by such Issuing Lender would ~~exist; provided that~~ exceed $7,500,000 less 20% of the ~~Co-Issuers~~ outstanding L/C Obligations in respect of Existing Letters of Credit. The letters of credit issued, or deemed to be issued, pursuant to the Closing Date Indebtedness and set forth on Schedule 3.1(a) hereof (the “Existing Letters of Credit”) shall ~~not~~ be ~~liable~~ deemed to be “Letters of Credit” issued on the Effective Date for ~~any Breakage Amounts resulting solely from such reallocations~~all purposes of the Loan Documents. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $25,000 or, if less than $25,000, shall bear a reasonable administrative fee to be agreed upon by the Co-Issuers and the Letter of Credit Provider and (z) expire no later than the earlier of (Ax) the first anniversary of its date of issuance unless otherwise agreed by the Issuing Lender in its sole discretion and (By) the date that is ~~ten (10)~~ five Business Days prior to the ~~Commitment~~ Revolving Termination ~~Date (the “Required Expiration~~ Date”); provided ~~that any~~ that, if requested by the Borrower and acceptable to the applicable Issuing Lender, a Letter of Credit issued by such Issuing Lender may provide for the ~~automatic extensions~~ renewal thereof for additional ~~periods, each individually not to exceed~~ one year periods containing an expiry date of more than twelve months after the date of issuance (which shall in no event extend beyond the ~~Required Expiration Date~~date referred to in clause (y) ~~unless the Letter of Credit Provider notifies each beneficiary of such Letter of Credit~~ above (unless, at least ~~thirty (30) calendar days~~ five Business Days prior to the ~~then-applicable expiration date (or no later than the applicable notice~~ then current expiry date, ~~if earlier, as specified in such Letter of Credit) that such Letter of Credit~~ the Borrower shall ~~not be renewed; provided further that any Letter of Credit may have an expiration date that is later than~~ Cash Collateralize the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the Co-Issuers in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit ~~as of~~ in an amount not less than the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory to the Letter of Credit Provider in its sole and absolute discretion have been made with the Letter of Credit Provider (and, if the Letter of Credit Provider is not the L/C Issuing Bank with respect Minimum Collateral Amount applicable to such Letter of Credit)); provided, ~~the L/C Issuing Bank~~however, that (A) ~~pursuant to Section 4.04 such that~~ any such Letter of Credit shall ~~cease~~ permit such Issuing Lender to ~~be deemed outstanding or to be deemed a “~~prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit~~” for purposes of this Agreement as of~~ ) by giving prior notice to the ~~Commitment Termination~~ beneficiary thereof not later than at least 30 days (the “Nonrenewal Notice Date~~. Additionally,~~ ”) in each ~~Series 2021~~such twelve-~~1 Interest Reserve~~ month period at the time such Letter of Credit is issued and (B) such Issuing Lender shall ~~(1) name~~ not permit such renewal if it has received notice on or before the ~~Indenture Trustee, for~~ date that is seven Business Days before the ~~benefit of~~ Nonrenewal Notice Date from the ~~Noteholders, as~~ Administrative Agent that the ~~beneficiary thereof; (2) allow the Indenture Trustee to submit a notice of drawing~~ Majority Facility Lenders in respect of the Revolving Facility have elected not to permit such Series 2021-1 Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Interest Reserve Account, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such Series 2021-1 Interest Reserve renewal. Each Letter of Credit shall be ~~paid directly into the Interest Reserve Account~~ a standby letter of credit backing a performance or ~~otherwise used to pay Required Interest Reserve Draw Amounts in accordance with Sections 5.01(c)~~ monetary obligation of the ~~Indenture. The~~ Borrower or any of its Subsidiaries (each a “Standby Letter of ~~Credit Provider~~ Credit”). (b) No Issuing Lender shall ~~not~~ at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the Letter of Credit Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (a) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the Co-Issuers shall issue and shall cause the Indenture Trustee to authenticate the Series 2021-1 Class A-1 L/C Notes, which the Co-Issuers shall deliver to the Letter of Credit Providers on the Series 2021-1 Closing Date; provided that, if such Series 2021-1 Class L/C Note is an Uncertificated Note, the Indenture Trustee shall instead register it as described in Section 2.01(a) of the Indenture. Such Series 2021-1 Class A-1 L/C Note shall be dated the Series 2021-1 Closing Date, shall be registered in the name of the Letter of Credit Provider or in such other name or nominee as the Letter of Credit Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 and (unless it is an Uncertificated Note) shall be duly authenticated in accordance with the provisions of the Indenture. The issuance and sale of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series 2021-1 Closing Date will constitute a Borrowing in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series 2021-1 Class A-1 L/C Note and shall be deemed to be Series 2021-1 Class A-1 Outstanding Principal Amounts (in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount) for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for the purposes of accrual of interest. Subject to the terms of this Agreement, each drawing of a Letter of Credit will constitute a “L/C Subfacility Increase” in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note and reimbursements of any Unreimbursed L/C Drawings thereunder will constitute a “L/C Subfacility Decrease” in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note. Each Letter of Credit Provider and the Co-Issuers agree to promptly notify the Series 2021-1 Class A-1 Administrative Agent and the Indenture Trustee of any such decreases for which notice to the Series 2021-1 Class A-1 Administrative Agent is not otherwise provided hereunder. (b) The Co-Issuers may (or shall cause the Manager on its behalf to) from time to time request that any Letter of Credit Provider provide a new Letter of Credit by delivering to the Letter of Credit Provider at its address for notices specified herein an application therefor in the form required by the applicable Letter of Credit Provider or L/C Issuing Bank, as applicable (an “Application”), completed to the satisfaction of the Letter of Credit Provider, and such other certificates, documents and other papers and information as the Letter of Credit Provider may reasonably request. Upon receipt of any completed Application, the Letter of Credit Provider will notify the Series 2021-1 Class A-1 Administrative Agent and the Indenture Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration of the requested Letter of Credit (which shall comply with Section 2.06(a) and (i)) and, subject to the other conditions set forth herein and upon receipt of written confirmation from the Series 2021-1 Class A-1 Administrative Agent (based, with respect to any portion of the Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount held by any Person other than the Series 2021-1 Class A-1 Administrative Agent, solely on written notices received by the Series 2021-1 Class A-1 Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series 2021-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2021-1 Class A-1 Notes Maximum Principal Amount (provided that the Letter of Credit Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the Series 2021-1 Class A-1 Administrative Agent for purposes of determining whether the Letter of Credit Provider received such prior written confirmation from the Series 2021-1 Class A-1 Administrative Agent with respect to any Letter of Credit), the Letter of Credit Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the Letter of Credit Provider be required to provide any Letter of Credit earlier than three (3) Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section 2.06(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the Letter of Credit Provider and the Co-Issuers. The Letter of Credit Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the Series 2021-1 Class A-1 Administrative Agent) promptly following the issuance thereof. Each Letter of Credit Provider shall promptly furnish to the Series 2021-1 Class A-1 Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, and the Indenture Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (c) The Co-Issuers shall pay to the Letter of Credit Provider the L/C Monthly Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Monthly Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. In addition, the Co-Issuers shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. (d) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (e) The Co-Issuers may, upon at least three (3) Business Days’ notice to the Series 2021-1 Class A-1 Administrative Agent and the applicable Letter of Credit Provider, effect a permanent reduction in the related L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Co-Issuers in writing and with the prior written consent of the Letter of Credit Provider and the Series 2021-1 Class A-1 Administrative Agent, the Letter of Credit Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the Outstanding Series 2021-1 Class A-1 Advance Notes and the L/C Commitment does not exceed the aggregate amount of the Commitments. (f) Each Letter of Credit Provider shall satisfy its obligations under this Section 2.06 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate as long as any such Letter of Credit issued would not be an Ineligible Interest Reserve Letter of Credit. If any such Letter of Credit would be an Ineligible Interest Reserve Letter of Credit, a Person selected by the Co-Issuers (at the reasonable expense of the Co-Issuers) shall issue such Letter of Credit; provided that any Letter of Credit issued by such Person would not be an Ineligible Interest Reserve Letter of Credit (the Letter of Credit Provider (or such Affiliate of the Letter of Credit Provider) or such other Person selected by the Co-Issuers (at the reasonable expense of the Co-Issuers), in each case in its capacity as the Co-Issuers of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). (g) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Co-Issuers in order to have any Letter of Credit issued by a Person selected by the Co-Issuers pursuant to Section 2.06(g) be a “Letter of Credit” that has been issued hereunder and such Person selected by the Co-Issuers be an “L/C Issuing Bank”. (h) Each Letter of Credit Provider and, if the Letter of Credit Provider is not the L/C Issuing Bank for any Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit ~~if: (i)~~ if such issuance would conflict with any ~~order, judgment or decree~~ applicable Requirement of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particularLaw. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2021-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) Each Series 2021-1 Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.04 of the I

Appears in 1 contract

Sources: Credit Agreement (Macquarie Infrastructure Corp)

L/C Commitment. (a) Subject to the terms and conditions hereof, ~~each Letter of Credit~~ the L/C Provider (or its permitted ~~successors and~~ assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections ~~2.07~~ 2.08 and ~~2.08~~2.09, agrees to provide standby letters of credit, including Interest Reserve Letters of Credit ~~or other standby letters of credit requested by the Co-Issuers and agreed upon by Letter of Credit Provider in its sole discretion~~ (~~together with the Interest Reserve Letters of Credit~~ each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of either or both of the Co-Issuers ~~or its designee~~ on any Business Day ~~at any time until~~ during the period commencing on the Series 2024-1 Closing Date and ending on the date that is ten ~~(10)~~ Business Days prior to the Commitment Termination Date to be issued in accordance with Section ~~2.06(g~~2.07(h) in such form as may be approved from time to time by the ~~Letter of Credit~~ L/C Provider; provided that the ~~Letter of Credit~~ L/C Provider shall have no obligation or right to provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, or (ii) the Series ~~2021~~2024-1 Class A-1 Outstanding Principal Amount would exceed the Series ~~2021~~2024-1 Class A-1 Notes Maximum Principal ~~Amount. Notwithstanding anything herein to the contrary, if a requested Letter of Credit would cause~~ Amount or (iii) the Series ~~2021~~2024-1 Class A-1 Outstanding Principal Amount attributable to ~~a Letter of Credit~~ the L/C Provider (in its capacity as Committed Note Purchaser and ~~Letter of Credit~~ L/C Provider) to would exceed its Commitment Amount (an “~~L/C~~ LC Commitment Excess”). Notwithstanding the preceding sentence, if a requested Letter of Credit would result in an LC Commitment Excess, the Investor Groups shall effectuate a reallocation of the Series ~~2021~~2024-1 Class A-1 Outstanding Principal Amounts to the extent necessary and permitted so that, immediately after such requested Letter of Credit is issued, no ~~L/C~~ LC Commitment Excess would exist; provided that the Co-Issuers shall not be liable for any Breakage Amounts resulting solely from any such reallocations. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $~~25,000 or~~100,000 (unless otherwise agreed by the L/C Provider, ~~if less than $25,000, shall bear~~ together with a reasonable administrative fee to be agreed upon by the Co-Issuers and the ~~Letter of Credit Provider~~ L/C Provider) and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ten (10) Business Days prior to the Commitment Termination Date (the “Required Expiration Date”); provided that any Letter of Credit may provide for the automatic ~~extensions~~ renewal thereof for additional periods, each individually not to exceed one year (which shall in no event extend beyond the Required Expiration Date) unless the ~~Letter of Credit~~ L/C Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be renewed; ~~provided further~~ provided, further, that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the Co-Issuers in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory to the ~~Letter of Credit~~ L/C Provider in its sole and absolute discretion have been made with the ~~Letter of Credit~~ L/C Provider (and, if the ~~Letter of Credit~~ L/C Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each ~~Series 2021-1~~ Interest Reserve Letter of Credit shall (1) name each of (A) the ~~Indenture~~ Trustee, for the benefit of the Senior Noteholders or the Senior Subordinated Noteholders, as applicable, and (B) the Control Party, as the beneficiary thereof; (2) allow the ~~Indenture~~ Trustee or the Control Party to submit a notice of drawing in respect of such ~~Series 2021-1~~ Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Senior Notes Interest Reserve ~~Account~~Accounts or the Senior Subordinated Notes Interest Reserve Accounts, as applicable, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such ~~Series 2021-1~~ Interest Reserve Letter of Credit shall be paid directly into the applicable Senior Notes Interest Reserve Account or ~~otherwise used to pay Required~~ the applicable Senior Subordinated Notes Interest Reserve ~~Draw Amounts in accordance with Sections 5.01(c)~~ Account, as applicable, or such other Account, as permitted pursuant to the terms of the Indenture. The ~~Letter of Credit~~ L/C Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the ~~Letter of Credit~~ L/C Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (ab) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the Co-Issuers shall issue and shall cause the ~~Indenture~~ Trustee to authenticate the Series ~~2021~~2024-1 Class A-1 L/C Notes, which the Co-Issuers shall deliver to the ~~Letter of Credit Providers~~ L/C Provider on the Series ~~2021~~2024-1 Closing Date; provided that, if such Series ~~2021~~2024-1 Class A-1 L/C Note is an Uncertificated Note, the ~~Indenture~~ Trustee shall instead register it as described in Section ~~2.01(a~~4.1(f) of the ~~Indenture~~Series 2024-1 Supplement. Such Series ~~2021~~2024-1 Class A-1 L/C Note ~~shall be~~ is dated the Series ~~2021~~2024-1 Closing Date, shall be registered in the name of the ~~Letter of Credit~~ L/C Provider or in such other name or nominee as the ~~Letter of Credit~~ L/C Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 the Series 2024-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and (unless it is an Uncertificated Note) shall be duly authenticated in accordance with the provisions of the Indenture. ~~The~~ Each issuance ~~and sale~~ of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series ~~2021~~2024-1 Closing Date will constitute ~~a Borrowing~~ an Increase in the outstanding principal amount evidenced by the Series ~~2021~~2024-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of ~~Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount~~Credit. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series ~~2021~~2024-1 Class A-1 L/C Note and shall be deemed to be Series ~~2021~~2024-1 Class A-1 Outstanding Principal Amounts ~~(in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount)~~ for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for ~~the~~ purposes of accrual of interest. Subject to the terms of this ~~Agreement~~Agreement and the Series 2024-1 Supplement, each ~~drawing~~ issuance of a Letter of Credit will constitute a ~~“L/C~~ Subfacility ~~Increase”~~ Increase in the outstanding principal amount evidenced by the Series ~~2021~~2024-1 Class A-1 L/C Note and the expiration of any Letter of Credit or reimbursements of any Unreimbursed L/C Drawings thereunder or other circumstances resulting in the permanent reduction in any Undrawn L/C Face Amounts from time to time will constitute a ~~“L/C~~ Subfacility ~~Decrease”~~ Decrease in the outstanding principal amount evidenced by the Series ~~2021~~2024-1 Class A-1 L/C Note. ~~Each Letter of Credit~~ The L/C Provider and the Co-Issuers agree to promptly notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee of any such decreases for which notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent is not otherwise provided hereunder. (bc) ~~The~~ Each Co-~~Issuers~~ Issuer (or both Co-Issuers) may (or shall cause the applicable Manager (or both Managers) on its (or their) behalf to) from time to time request that ~~any Letter of Credit~~ the L/C Provider provide a new Letter of Credit by delivering to the ~~Letter of Credit~~ L/C Provider at its address for notices specified herein an ~~application~~ Application therefor (in the form required by the applicable ~~Letter of Credit Provider or~~ L/C Issuing ~~Bank,~~ Bank as ~~applicable (an “Application”~~notified to the Co-Issuers by the L/C Provider), completed to the satisfaction of the ~~Letter of Credit~~ L/C Provider, and such other certificates, documents and other papers and information as the L/C Provider may reasonably request on behalf of the L/C Issuing Bank. Notwithstanding the foregoing sentence, each letter of credit set forth on Schedule IV hereto shall be deemed a Letter of Credit provided and issued by the L/C Provider ~~may reasonably request~~hereunder as of the Series 2024-1 Closing Date. Upon receipt of any completed Application, the ~~Letter of Credit~~ L/C Provider will notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration of the requested Letter of Credit (which shall comply with Section ~~2.06(a~~2.07(a) and (i)) and, subject to the other conditions set forth herein and in the Series 2024-1 Supplement and upon receipt of written confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent (based, with respect to any portion of the Series ~~2021~~2024-1 Class A-1 Outstanding ~~L/C~~ Subfacility Amount held by any Person other than the ~~Series 2021-1 Class A-1~~ Administrative Agent, solely on written notices received by the ~~Series 2021-1 Class A-1~~ Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series ~~2021~~2024-1 Class A-1 Outstanding Principal Amount would not exceed the Series ~~2021~~2024-1 Class A-1 Notes Maximum Principal Amount (provided that the ~~Letter of Credit~~ L/C Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the ~~Series 2021-1 Class A-1~~ Administrative Agent for purposes of determining whether the ~~Letter of Credit~~ L/C Provider received such prior written confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent with respect to any Letter of Credit), the ~~Letter of Credit~~ L/C Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the ~~Letter of Credit~~ L/C Provider be required to provide any Letter of Credit earlier than three ~~(3)~~ Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section ~~2.06(a~~2.07(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the ~~Letter of Credit~~ L/C Provider and the applicable Co-Issuer (or the Co-Issuers). The ~~Letter of Credit~~ L/C Provider shall furnish a copy of such Letter of Credit to the ~~Manager~~ Managers and the Co-Issuers (with a copy to the ~~Series 2021-1 Class A-1~~ Administrative Agent) promptly following the issuance thereof. ~~Each Letter of Credit~~ The L/C Provider shall promptly furnish to the ~~Series 2021-1 Class A-1~~ Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the ~~Indenture~~ Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (cd) The Co-Issuers shall pay to the ~~Letter of Credit~~ L/C Provider the L/C ~~Monthly~~ Quarterly Fees (as defined in the applicable Series ~~2021~~2024-1 Class A-1 Notes Fee Letter, the “L/C ~~Monthly~~ Quarterly Fees”) in accordance with the terms of ~~the~~ such Series ~~2021~~2024-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. In addition, the Co-Issuers shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Issuance Fees”) in accordance with ~~the terms of the Series 2021-1 Class A-1 Notes Fee Letter~~ and subject to the Priority of Payments. (de) [Reserved]. (f) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (eg) The Co-Issuers may, upon at least three (3) Business Days’ notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~applicable Letter of Credit~~ L/C Provider, effect a permanent reduction in the ~~related~~ L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Co-Issuers in writing and with the prior written consent of the ~~Letter of Credit~~ L/C Provider and the ~~Series 2021-1 Class A-1~~ Administrative Agent, the ~~Letter of Credit~~ L/C Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the ~~Outstanding~~ Series ~~2021~~2024-1 Class A-1 ~~Advance Notes~~ Outstanding Principal Amounts, the Swingline Commitment and the L/C Commitment does not exceed the aggregate ~~amount of the Commitments~~Commitment Amounts. (fh) ~~Each Letter of Credit~~ The L/C Provider shall satisfy its obligations under this Section ~~2.06~~ 2.07 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate ~~as long as any~~ if the L/C Issuing Bank Rating Test is satisfied with respect to such ~~Letter~~ Affiliate and the issuance of ~~Credit issued would not be an Ineligible Interest Reserve~~ such Letter of Credit. If ~~any~~ the L/C Issuing Bank Rating Test is not satisfied with respect to such ~~Letter of Credit would be an Ineligible Interest Reserve Letter of Credit~~Affiliate, a Person selected by the Co-Issuers (at the ~~reasonable~~ expense of the ~~Co-Issuers~~L/C Provider) shall issue such Letter of Credit; provided that ~~any~~ such Person and issuance of such Letter of Credit ~~issued by such Person would not be an Ineligible Interest Reserve Letter of Credit~~ satisfies the L/C Issuing Bank Rating Test (the ~~Letter of Credit~~ L/C Provider (or such Affiliate of the ~~Letter of Credit~~ L/C Provider) or such other Person selected by the Co-Issuers (at the ~~reasonable~~ expense of the ~~Co-Issuers~~L/C Provider), in each case in its capacity as the ~~Co-Issuers~~ issuer of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). . The “L/C Issuing Bank Rating Test” is a test that is satisfied with respect to a Person issuing a Letter of Credit if the Person is a U.S. commercial bank that has, at the time of the issuance of such Letter of Credit, (gi) a short-term certificate of deposit rating of not less than “A-2” (or then equivalent grade) from S&P and (ii) a long-term unsecured debt rating of not less than “BBB” (or then equivalent grade) from S&P or such other minimum long-term unsecured debt rating as may be reasonably required by the beneficiary or beneficiaries of such proposed Letter of Credit. Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Co-Issuers in order to have any ~~Letter~~ letter of ~~Credit~~ credit issued by a Person selected by the Co-~~Issuers~~ Issuer pursuant to this Section ~~2.06(g~~2.07(h) or Section 5.17 of the Base Indenture be a “Letter of Credit” that has been issued hereunder and such Person selected by the Co-Issuers be an “L/C Issuing Bank”. (h) Each Letter of Credit Provider and, if the Letter of Credit Provider is not the L/C Issuing Bank for any Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2021-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) Each Series 2021-1 Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.04 of the I

Appears in 1 contract

Sources: Note Purchase Agreement (Driven Brands Holdings Inc.)

L/C Commitment. (a) Subject to the terms and conditions hereof, ~~each Letter of Credit~~ the L/C Provider (or its permitted ~~successors and~~ assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections ~~2.07~~ 2.08 and ~~2.08~~2.09, agrees to provide standby letters of credit, including Interest Reserve Letters of Credit ~~or other standby letters of credit requested by the Co-Issuers and agreed upon by Letter of Credit Provider in its sole discretion~~ (~~together with the Interest Reserve Letters of Credit~~ each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of either or both of the CoIssuerCo-Issuers ~~or its designee~~ on any Business Day ~~at any time until~~ during the period commencing on the Series 2019-3 Closing Date and ending on the date that is ten ~~(10)~~ Business Days prior to the Commitment Termination Date to be issued in accordance with Section ~~2.06(g~~2.07(h) in such form as may be approved from time to time by the ~~Letter of Credit~~ L/C Provider; provided that the ~~Letter of Credit~~ L/C Provider shall have no obligation or right to provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, or (ii) the Series ~~2021~~2019-1 3 Class A-1 Outstanding Principal Amount would exceed the Series ~~2021~~2019-1 3 Class A-1 Notes Maximum Principal ~~Amount. Notwithstanding anything herein to the contrary, if a requested Letter of Credit would cause~~ Amount or (iii) the Series ~~2021~~2019-1 3 Class A-1 Outstanding Principal Amount attributable to ~~a Letter of Credit~~ the L/C Provider (in its capacity as Committed Note Purchaser and ~~Letter of Credit~~ L/C Provider) to would exceed its Commitment Amount (an “L/C Commitment Excess”), the Investor Groups shall effectuate a reallocation of the Series 2021-1 Class A-1 Outstanding Principal Amounts to the extent necessary so that, immediately after such requested Letter of Credit is issued, no L/C Commitment Excess would exist; provided that the Co-Issuers shall not be liable for any Breakage Amounts resulting solely from such reallocationsAmount. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $~~25,000 or~~100,000 (unless otherwise agreed by the L/C Provider, ~~if less than $25,000, shall bear~~ together with a reasonable administrative fee to be agreed ~~upon by the Co-Issuers and the Letter of Credit Provider~~ upon) and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ten (10) Business Days prior to the Commitment Termination Date (the “Required Expiration Date”); provided that any Letter of Credit may provide for the automatic ~~extensions~~ renewal thereof for additional periods, each individually not to exceed one year (which shall in no event extend beyond the Required Expiration Date) unless the ~~Letter of Credit~~ L/C Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be renewed; provided further that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the CoIssuerCo-Issuers in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory to the ~~Letter of Credit~~ L/C Provider in its sole and absolute discretion have been made with the ~~Letter of Credit~~ L/C Provider (and, if the ~~Letter of Credit~~ L/C Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each Series 2021-1 Interest Reserve Letter of Credit shall (1) name the Indenture Trustee, for the benefit of the Noteholders, as the beneficiary thereof; (2) allow the Indenture Trustee to submit a notice of drawing in respect of such Series 2021-1 Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Interest Reserve Account, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such Series 2021-1 Interest Reserve Letter of Credit shall be paid directly into the Interest Reserve Account or otherwise used to pay Required Interest Reserve Draw Amounts in accordance with Sections 5.01(c) of the Indenture. The Letter of Credit Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the Letter of Credit Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (a) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the Co-Issuers shall issue and shall cause the Indenture Trustee to authenticate the Series 2021-1 Class A-1 L/C Notes, which the Co-Issuers shall deliver to the Letter of Credit Providers on the Series 2021-1 Closing Date; provided that, if such Series 2021-1 Class L/C Note is an Uncertificated Note, the Indenture Trustee shall instead register it as described in Section 2.01(a) of the Indenture. Such Series 2021-1 Class A-1 L/C Note shall be dated the Series 2021-1 Closing Date, shall be registered in the name of the Letter of Credit Provider or in such other name or nominee as the Letter of Credit Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 and (unless it is an Uncertificated Note) shall be duly authenticated in accordance with the provisions of the Indenture. The issuance and sale of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series 2021-1 Closing Date will constitute a Borrowing in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series 2021-1 Class A-1 L/C Note and shall be deemed to be Series 2021-1 Class A-1 Outstanding Principal Amounts (in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount) for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for the purposes of accrual of interest. Subject to the terms of this Agreement, each drawing of a Letter of Credit will constitute a “L/C Subfacility Increase” in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note and reimbursements of any Unreimbursed L/C Drawings thereunder will constitute a “L/C Subfacility Decrease” in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note. Each Letter of Credit Provider and the Co-Issuers agree to promptly notify the Series 2021-1 Class A-1 Administrative Agent and the Indenture Trustee of any such decreases for which notice to the Series 2021-1 Class A-1 Administrative Agent is not otherwise provided hereunder. (b) The Co-Issuers may (or shall cause the Manager on its behalf to) from time to time request that any Letter of Credit Provider provide a new Letter of Credit by delivering to the Letter of Credit Provider at its address for notices specified herein an application therefor in the form required by the applicable Letter of Credit Provider or L/C Issuing Bank, as applicable (an “Application”), completed to the satisfaction of the Letter of Credit Provider, and such other certificates, documents and other papers and information as the Letter of Credit Provider may reasonably request. Upon receipt of any completed Application, the Letter of Credit Provider will notify the Series 2021-1 Class A-1 Administrative Agent and the Indenture Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration of the requested Letter of Credit (which shall comply with Section 2.06(a) and (i)) and, subject to the other conditions set forth herein and upon receipt of written confirmation from the Series 2021-1 Class A-1 Administrative Agent (based, with respect to any portion of the Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount held by any Person other than the Series 2021-1 Class A-1 Administrative Agent, solely on written notices received by the Series 2021-1 Class A-1 Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series 2021-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2021-1 Class A-1 Notes Maximum Principal Amount (provided that the Letter of Credit Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the Series 2021-1 Class A-1 Administrative Agent for purposes of determining whether the Letter of Credit Provider received such prior written confirmation from the Series 2021-1 Class A-1 Administrative Agent with respect to any Letter of Credit), the Letter of Credit Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the Letter of Credit Provider be required to provide any Letter of Credit earlier than three (3) Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section 2.06(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the Letter of Credit Provider and the Co-Issuers. The Letter of Credit Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the Series 2021-1 Class A-1 Administrative Agent) promptly following the issuance thereof. Each Letter of Credit Provider shall promptly furnish to the Series 2021-1 Class A-1 Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, and the Indenture Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (c) The Co-Issuers shall pay to the Letter of Credit Provider the L/C Monthly Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Monthly Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. In addition, the Co-Issuers shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. (d) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (e) The Co-Issuers may, upon at least three (3) Business Days’ notice to the Series 2021-1 Class A-1 Administrative Agent and the applicable Letter of Credit Provider, effect a permanent reduction in the related L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Co-Issuers in writing and with the prior written consent of the Letter of Credit Provider and the Series 2021-1 Class A-1 Administrative Agent, the Letter of Credit Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the Outstanding Series 2021-1 Class A-1 Advance Notes and the L/C Commitment does not exceed the aggregate amount of the Commitments. (f) Each Letter of Credit Provider shall satisfy its obligations under this Section 2.06 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate as long as any such Letter of Credit issued would not be an Ineligible Interest Reserve Letter of Credit. If any such Letter of Credit would be an Ineligible Interest Reserve Letter of Credit, a Person selected by the Co-Issuers (at the reasonable expense of the Co-Issuers) shall issue such Letter of Credit; provided that any Letter of Credit issued by such Person would not be an Ineligible Interest Reserve Letter of Credit (the Letter of Credit Provider (or such Affiliate of the Letter of Credit Provider) or such other Person selected by the Co-Issuers (at the reasonable expense of the Co-Issuers), in each case in its capacity as the Co-Issuers of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). (g) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Co-Issuers in order to have any Letter of Credit issued by a Person selected by the Co-Issuers pursuant to Section 2.06(g) be a “Letter of Credit” that has been issued hereunder and such Person selected by the Co-Issuers be an “L/C Issuing Bank”. (h) Each Letter of Credit Provider and, if the Letter of Credit Provider is not the L/C Issuing Bank for any Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2021-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) Each Series 2021-1 Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.04 of the I

Appears in 1 contract

Sources: Class a 1 Note Purchase Agreement (Driven Brands Holdings Inc.)

L/C Commitment. (a) Subject to the terms and conditions hereof, each ~~Letter of Credit Provider (or its permitted successors and assigns pursuant to Section 9.17)~~Issuing Lender, in reliance on the agreements of the ~~Committed Note Purchasers~~ other Revolving Lenders set forth in ~~Sections 2.07 and 2.08~~Section 3.4(a), agrees to ~~provide Interest Reserve Letters of Credit or other standby~~ issue letters of credit ~~requested by the Co-Issuers and agreed upon by Letter of Credit Provider in its sole discretion~~ (~~together with the Interest Reserve Letters of Credit each, a “Letter of Credit” and, collectively, the~~ “Letters of Credit”) for the account of the CoBorrower or for the account of Holdings or any of its Restricted Subsidiaries (in which case the Borrower and Holdings or such Restricted Subsidiary, as applicable, shall be co-~~Issuers or its designee~~ applicants with respect to such Letter of Credit) on any Business Day ~~at any time until~~ during the period commencing on the Closing Date and ending on the date that is ~~ten~~ five (105) Business Days prior to the ~~Commitment~~ Revolving Termination Date ~~to be issued in accordance with Section 2.06(g)~~ in such form as may be reasonably approved from time to time by ~~the Letter of Credit Provider~~such Issuing Lender; provided that ~~the Letter of Credit Provider~~ no Issuing Lender shall have no any obligation ~~or right~~ to ~~provide~~ issue any Letter of Credit ~~on a requested issuance date~~ if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, or (ii) any Revolving Lender is at such time a Defaulting Lender, unless such Issuing Lender has entered into arrangements, including reallocation of such Lender’s Revolving Percentage of the ~~Series 2021-1 Class A-1 Outstanding Principal Amount would exceed~~ outstanding L/C Obligations pursuant to Section 2.27(a)(iv) or the ~~Series 2021-1 Class A-1 Notes Maximum Principal Amount. Notwithstanding anything herein~~ delivery of Cash Collateral, satisfactory to such Issuing Lender with the ~~contrary, if a requested~~ Borrower or such Lender to eliminate such Issuing Lender’s actual or potential Fronting Exposure (after giving effect to Section 2.27(a)(iv)) with respect to such Lender arising from either the Letter of Credit ~~would cause the Series 2021-1 Class A-1 Outstanding Principal Amount attributable~~ then proposed to a be issued or such Letter of Credit ~~Provider (in its capacity as Committed Note Purchaser~~ and ~~Letter of Credit Provider) to exceed its Commitment Amount (an “~~all other L/C ~~Commitment Excess”)~~Obligations as to which such Issuing Lender has actual or potential Fronting Exposure, as it may elect in its sole discretion, (iii) the ~~Investor Groups shall effectuate a reallocation~~ aggregate amount of the ~~Series 2021-1 Class A-1 Outstanding Principal Amounts to~~ Available Revolving Commitments would be less than zero or (iv) the ~~extent necessary so that, immediately after such requested Letter of Credit is issued, no~~ outstanding L/C ~~Commitment Excess~~ Obligations in respect of Letters of Credit issued by such Issuing Lender would ~~exist; provided that~~ exceed $8,750,000 less one-quarter of the ~~Co-Issuers~~ Outstanding L/C Obligations in respect of Existing Letters of Credit. The letters of credit issued, or deemed to be issued, pursuant to the Closing Date Indebtedness and set forth on Schedule 3.1(a) hereof (the “Existing Letters of Credit”) shall ~~not~~ be ~~liable~~ deemed to be “Letters of Credit” issued on the Effective Date for ~~any Breakage Amounts resulting solely from such reallocations~~all purposes of the Loan Documents. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $25,000 or, if less than $25,000, shall bear a reasonable administrative fee to be agreed upon by the Co-Issuers and the Letter of Credit Provider and (z) expire no later than the earlier of (Ax) the first anniversary of its date of issuance unless otherwise agreed by the Issuing Lender in its sole discretion and (By) the date that is ~~ten (10)~~ five Business Days prior to the ~~Commitment~~ Revolving Termination ~~Date (the “Required Expiration~~ Date”); provided ~~that any~~ that, if requested by the Borrower and acceptable to the applicable Issuing Lender, a Letter of Credit issued by such Issuing Lender may provide for the ~~automatic extensions~~ renewal thereof for additional ~~periods, each individually not to exceed~~ one year periods containing an expiry date of more than twelve months after the date of issuance (which shall in no event extend beyond the ~~Required Expiration Date~~date referred to in clause (y) ~~unless the Letter of Credit Provider notifies each beneficiary of such Letter of Credit~~ above (unless, at least ~~thirty (30) calendar days~~ five Business Days prior to the ~~then-applicable expiration date (or no later than the applicable notice~~ then current expiry date, ~~if earlier, as specified in such Letter of Credit) that such Letter of Credit~~ the Borrower shall ~~not be renewed; provided further that any Letter of Credit may have an expiration date that is later than~~ Cash Collateralize the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the Co-Issuers in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit ~~as of~~ in an amount not less than the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory to the Letter of Credit Provider in its sole and absolute discretion have been made with the Letter of Credit Provider (and, if the Letter of Credit Provider is not the L/C Issuing Bank with respect Minimum Collateral Amount applicable to such Letter of Credit)); provided, ~~the L/C Issuing Bank~~however, that (A) ~~pursuant to Section 4.04 such that~~ any such Letter of Credit shall ~~cease~~ permit such Issuing Lender to ~~be deemed outstanding or to be deemed a “~~prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit~~” for purposes of this Agreement as of~~ ) by giving prior notice to the ~~Commitment Termination~~ beneficiary thereof not later than at least 30 days (the “Nonrenewal Notice Date~~. Additionally,~~ ”) in each ~~Series 2021~~such twelve-~~1 Interest Reserve~~ month period at the time such Letter of Credit is issued and (B) such Issuing Lender shall ~~(1) name~~ not permit such renewal if it has received notice on or before the ~~Indenture Trustee, for~~ date that is seven Business Days before the ~~benefit of~~ Nonrenewal Notice Date from the ~~Noteholders, as~~ Administrative Agent that the ~~beneficiary thereof; (2) allow the Indenture Trustee to submit a notice of drawing~~ Majority Facility Lenders in respect of the Revolving Facility have elected not to permit such Series 2021-1 Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Interest Reserve Account, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such Series 2021-1 Interest Reserve renewal. Each Letter of Credit shall be ~~paid directly into the Interest Reserve Account~~ a standby letter of credit backing a performance or ~~otherwise used to pay Required Interest Reserve Draw Amounts in accordance with Sections 5.01(c)~~ monetary obligation of the ~~Indenture. The~~ Borrower or any of its Subsidiaries (each a “Standby Letter of ~~Credit Provider~~ Credit”). (b) No Issuing Lender shall ~~not~~ at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the Letter of Credit Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (a) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the Co-Issuers shall issue and shall cause the Indenture Trustee to authenticate the Series 2021-1 Class A-1 L/C Notes, which the Co-Issuers shall deliver to the Letter of Credit Providers on the Series 2021-1 Closing Date; provided that, if such Series 2021-1 Class L/C Note is an Uncertificated Note, the Indenture Trustee shall instead register it as described in Section 2.01(a) of the Indenture. Such Series 2021-1 Class A-1 L/C Note shall be dated the Series 2021-1 Closing Date, shall be registered in the name of the Letter of Credit Provider or in such other name or nominee as the Letter of Credit Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 and (unless it is an Uncertificated Note) shall be duly authenticated in accordance with the provisions of the Indenture. The issuance and sale of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series 2021-1 Closing Date will constitute a Borrowing in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series 2021-1 Class A-1 L/C Note and shall be deemed to be Series 2021-1 Class A-1 Outstanding Principal Amounts (in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount) for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for the purposes of accrual of interest. Subject to the terms of this Agreement, each drawing of a Letter of Credit will constitute a “L/C Subfacility Increase” in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note and reimbursements of any Unreimbursed L/C Drawings thereunder will constitute a “L/C Subfacility Decrease” in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note. Each Letter of Credit Provider and the Co-Issuers agree to promptly notify the Series 2021-1 Class A-1 Administrative Agent and the Indenture Trustee of any such decreases for which notice to the Series 2021-1 Class A-1 Administrative Agent is not otherwise provided hereunder. (b) The Co-Issuers may (or shall cause the Manager on its behalf to) from time to time request that any Letter of Credit Provider provide a new Letter of Credit by delivering to the Letter of Credit Provider at its address for notices specified herein an application therefor in the form required by the applicable Letter of Credit Provider or L/C Issuing Bank, as applicable (an “Application”), completed to the satisfaction of the Letter of Credit Provider, and such other certificates, documents and other papers and information as the Letter of Credit Provider may reasonably request. Upon receipt of any completed Application, the Letter of Credit Provider will notify the Series 2021-1 Class A-1 Administrative Agent and the Indenture Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration of the requested Letter of Credit (which shall comply with Section 2.06(a) and (i)) and, subject to the other conditions set forth herein and upon receipt of written confirmation from the Series 2021-1 Class A-1 Administrative Agent (based, with respect to any portion of the Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount held by any Person other than the Series 2021-1 Class A-1 Administrative Agent, solely on written notices received by the Series 2021-1 Class A-1 Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series 2021-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2021-1 Class A-1 Notes Maximum Principal Amount (provided that the Letter of Credit Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the Series 2021-1 Class A-1 Administrative Agent for purposes of determining whether the Letter of Credit Provider received such prior written confirmation from the Series 2021-1 Class A-1 Administrative Agent with respect to any Letter of Credit), the Letter of Credit Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the Letter of Credit Provider be required to provide any Letter of Credit earlier than three (3) Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section 2.06(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the Letter of Credit Provider and the Co-Issuers. The Letter of Credit Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the Series 2021-1 Class A-1 Administrative Agent) promptly following the issuance thereof. Each Letter of Credit Provider shall promptly furnish to the Series 2021-1 Class A-1 Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, and the Indenture Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (c) The Co-Issuers shall pay to the Letter of Credit Provider the L/C Monthly Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Monthly Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. In addition, the Co-Issuers shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. (d) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (e) The Co-Issuers may, upon at least three (3) Business Days’ notice to the Series 2021-1 Class A-1 Administrative Agent and the applicable Letter of Credit Provider, effect a permanent reduction in the related L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Co-Issuers in writing and with the prior written consent of the Letter of Credit Provider and the Series 2021-1 Class A-1 Administrative Agent, the Letter of Credit Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the Outstanding Series 2021-1 Class A-1 Advance Notes and the L/C Commitment does not exceed the aggregate amount of the Commitments. (f) Each Letter of Credit Provider shall satisfy its obligations under this Section 2.06 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate as long as any such Letter of Credit issued would not be an Ineligible Interest Reserve Letter of Credit. If any such Letter of Credit would be an Ineligible Interest Reserve Letter of Credit, a Person selected by the Co-Issuers (at the reasonable expense of the Co-Issuers) shall issue such Letter of Credit; provided that any Letter of Credit issued by such Person would not be an Ineligible Interest Reserve Letter of Credit (the Letter of Credit Provider (or such Affiliate of the Letter of Credit Provider) or such other Person selected by the Co-Issuers (at the reasonable expense of the Co-Issuers), in each case in its capacity as the Co-Issuers of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). (g) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Co-Issuers in order to have any Letter of Credit issued by a Person selected by the Co-Issuers pursuant to Section 2.06(g) be a “Letter of Credit” that has been issued hereunder and such Person selected by the Co-Issuers be an “L/C Issuing Bank”. (h) Each Letter of Credit Provider and, if the Letter of Credit Provider is not the L/C Issuing Bank for any Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit ~~if: (i)~~ if such issuance would conflict with any ~~order, judgment or decree~~ applicable Requirement of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particularLaw. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2021-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) Each Series 2021-1 Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.04 of the I

Appears in 1 contract

Sources: Credit Agreement (Macquarie Infrastructure Corp)

L/C Commitment. (a) Subject to the terms and conditions hereof, each ~~Letter of Credit Provider (or its permitted successors and assigns pursuant to Section 9.17)~~Issuing Bank, in reliance on the agreements of the ~~Committed Note Purchasers~~ other Lenders set forth in ~~Sections 2.07 and 2.08~~subsection 3.9(a), agrees to ~~provide Interest Reserve Letters of Credit or other standby~~ issue letters of credit ~~requested by the Co-Issuers and agreed upon by Letter of Credit Provider in its sole discretion~~ (~~together with the Interest Reserve Letters of Credit each, a “Letter of Credit” and, collectively, the “~~"Letters of Credit”") for the account of the ~~Co-Issuers or its designee~~ Borrower on any Business Day ~~at any time until~~ during the ~~date that is ten (10) Business Days prior to the~~ Revolving Credit Commitment ~~Termination Date to be issued in accordance with Section 2.06(g)~~ Period in such form as may be approved from time to time by ~~the Letter of Credit Provider~~such Issuing Bank; provided that ~~the Letter of Credit Provider~~ no Issuing Bank shall have no any obligation ~~or right~~ to ~~provide~~ issue any Letter of Credit ~~on a requested issuance date~~ if, after giving effect to such issuance, (i) the L/C Obligations at such time would exceed the L/C Commitment, or (ii) the ~~Series 2021-1 Class A-1 Outstanding Principal Amount~~ Standby Letter of Credit Outstandings at such time would exceed $125,000,000, (iii) the Aggregate Revolving Credit Outstandings at such time would exceed the ~~Series 2021-1 Class A-1 Notes Maximum Principal Amount. Notwithstanding anything herein to~~ aggregate amount of the ~~contrary~~Revolving Credit Commitments at such time, ~~if a requested Letter~~ (iv) in the case of Letters of Credit ~~would cause~~ issued in currencies other than Dollars only, the ~~Series 2021-1 Class A-1 Outstanding Principal Amount attributable to a Letter~~ L/C Obligations in respect of Letters of Credit ~~Provider (~~issued in ~~its capacity as Committed Note Purchaser and Letter of Credit Provider) to~~ currencies other than Dollars would exceed ~~its Commitment Amount (an “~~the Foreign L/C Commitment ~~Excess”)~~Sublimit at such time, or (v) the ~~Investor Groups shall effectuate a reallocation of the Series 2021-1 Class A-1~~ Aggregate Outstanding ~~Principal Amounts to the extent necessary so that, immediately after such requested Letter~~ Extensions of Credit ~~is issued, no L/C Commitment Excess~~ at such time would ~~exist; provided that~~ exceed the ~~Co-Issuers shall not be liable for any Breakage Amounts resulting solely from~~ Borrowing Base at such ~~reallocations.~~ time. (b) Each Letter of Credit ~~shall~~ shall: (xi) be denominated in ~~Dollars~~Dollars or such other currency that as of the date of issuance thereof is in the reasonable judgment of the relevant Issuing Bank (which shall be binding on the L/C Participants) freely convertible or exchangeable into Dollars as the Borrower, the relevant Issuing Bank and the Administrative Agent may from time to time agree, and shall be either (yA) ~~have~~ a ~~face amount~~ standby letter of ~~at least $25,000 or~~credit issued to support obligations of the Borrower or a Subsidiary, ~~if less than $25,000~~contingent or otherwise (a "Standby Letter of Credit"), ~~shall bear~~ or (B) a ~~reasonable administrative fee to be agreed upon~~ commercial letter of credit issued in respect of the purchase of inventory or other goods or services by the ~~Co-Issuers~~ Borrower and its Subsidiaries in the ordinary course of business (a "Trade Letter of ~~Credit Provider and~~ Credit"), and (zii) expire no later than the earlier of (A) ~~the first anniversary of its date of issuance and (B) the date that is ten (10)~~ five Business Days prior to the ~~Commitment~~ Termination Date (unless the ~~“Required Expiration~~ Administrative Agent has received and maintains cash Collateral in an amount equal to 103% of the maximum amount available to be drawn under any such Letter of Credit for which the Borrower has requested an expiry date after the Termination Date~~”);~~ , in which event the expiry of any such Letter of Credit may extend beyond the Termination Date) and (B) one year after the date of issuance thereof, provided ~~that~~ that, subject to clause (A) above, any Letter of Credit ~~may provide for~~ may, at the ~~automatic extensions~~ request of the Applicant as set forth in the applicable Application, be automatically renewed on each anniversary of the issuance thereof for an additional ~~periods, each individually not to exceed~~ period of one year ~~(which shall in no event extend beyond the Required Expiration Date)~~ or less unless the Issuing Bank which issued such Letter of Credit ~~Provider notifies each~~ shall have given at least sixty days prior written notice to the Borrower and the beneficiary of such Letter of Credit ~~at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit)~~ that such Letter of Credit ~~shall~~ will not be renewed~~; provided further that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to~~ , in which case such Letter of Credit ~~has been fully cash collateralized by~~ may, at the ~~Co-Issuers in accordance with Section 4.02 or 4.03 as~~ option of the ~~Required Expiration Date and there are no other outstanding L/C Obligations with respect to~~ Borrower, provide that the beneficiary of such Letter of Credit ~~as of the Required Expiration Date or (y) other than with respect~~ will be entitled to Interest Reserve Letters of Credit, arrangements satisfactory to the Letter of Credit Provider in its sole and absolute discretion have been made with the Letter of Credit Provider (and, if the Letter of Credit Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that draw on such Letter of Credit ~~shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of~~ at any time during the Commitment Termination Date. Additionally, each Series 2021-1 Interest Reserve Letter of Credit shall (1) name the Indenture Trustee, for the benefit of the Noteholders, as the beneficiary thereof; (2) allow the Indenture Trustee to submit a notice of drawing in respect of such Series 2021-1 Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Interest Reserve Account, pursuant thirty days prior to the ~~Indenture; and~~ expiry thereof. (3c) ~~indicate by its terms that the proceeds in respect of drawings under such Series 2021-1 Interest Reserve~~ Each Letter of Credit shall be ~~paid directly into~~ subject to the ~~Interest Reserve Account or otherwise used~~ Uniform Customs and, to ~~pay Required Interest Reserve Draw Amounts in accordance with Sections 5.01(c)~~ the extent not inconsistent therewith, the law of the ~~Indenture. The Letter~~ Commonwealth of ~~Credit Provider~~ Massachusetts. (d) No Issuing Bank shall ~~not~~ at any time be obligated to ~~(I) provide~~ issue any Letter of Credit hereunder if such issuance would ~~violate~~conflict with, or cause such Issuing Bank or any L/C ~~Issuing Bank~~ Participant to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the Letter of Credit Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (a) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the Co-Issuers shall issue and shall cause the Indenture Trustee to authenticate the Series 2021-1 Class A-1 L/C Notes, which the Co-Issuers shall deliver to the Letter of Credit Providers on the Series 2021-1 Closing Date; provided that, if such Series 2021-1 Class L/C Note is an Uncertificated Note, the Indenture Trustee shall instead register it as described in Section 2.01(a) of the Indenture. Such Series 2021-1 Class A-1 L/C Note shall be dated the Series 2021-1 Closing Date, shall be registered in the name of the Letter of Credit Provider or in such other name or nominee as the Letter of Credit Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 and (unless it is an Uncertificated Note) shall be duly authenticated in accordance with the provisions of the Indenture. The issuance and sale of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series 2021-1 Closing Date will constitute a Borrowing in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series 2021-1 Class A-1 L/C Note and shall be deemed to be Series 2021-1 Class A-1 Outstanding Principal Amounts (in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount) for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for the purposes of accrual of interest. Subject to the terms of this Agreement, each drawing of a Letter of Credit will constitute a “L/C Subfacility Increase” in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note and reimbursements of any Unreimbursed L/C Drawings thereunder will constitute a “L/C Subfacility Decrease” in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note. Each Letter of Credit Provider and the Co-Issuers agree to promptly notify the Series 2021-1 Class A-1 Administrative Agent and the Indenture Trustee of any such decreases for which notice to the Series 2021-1 Class A-1 Administrative Agent is not otherwise provided hereunder. (b) The Co-Issuers may (or shall cause the Manager on its behalf to) from time to time request that any Letter of Credit Provider provide a new Letter of Credit by delivering to the Letter of Credit Provider at its address for notices specified herein an application therefor in the form required by the applicable Letter of Credit Provider or L/C Issuing Bank, as applicable (an “Application”), completed to the satisfaction of the Letter of Credit Provider, and such other certificates, documents and other papers and information as the Letter of Credit Provider may reasonably request. Upon receipt of any completed Application, the Letter of Credit Provider will notify the Series 2021-1 Class A-1 Administrative Agent and the Indenture Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration of the requested Letter of Credit (which shall comply with Section 2.06(a) and (i)) and, subject to the other conditions set forth herein and upon receipt of written confirmation from the Series 2021-1 Class A-1 Administrative Agent (based, with respect to any portion of the Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount held by any Person other than the Series 2021-1 Class A-1 Administrative Agent, solely on written notices received by the Series 2021-1 Class A-1 Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series 2021-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2021-1 Class A-1 Notes Maximum Principal Amount (provided that the Letter of Credit Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the Series 2021-1 Class A-1 Administrative Agent for purposes of determining whether the Letter of Credit Provider received such prior written confirmation from the Series 2021-1 Class A-1 Administrative Agent with respect to any Letter of Credit), the Letter of Credit Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the Letter of Credit Provider be required to provide any Letter of Credit earlier than three (3) Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section 2.06(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the Letter of Credit Provider and the Co-Issuers. The Letter of Credit Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the Series 2021-1 Class A-1 Administrative Agent) promptly following the issuance thereof. Each Letter of Credit Provider shall promptly furnish to the Series 2021-1 Class A-1 Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, and the Indenture Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (c) The Co-Issuers shall pay to the Letter of Credit Provider the L/C Monthly Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Monthly Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. In addition, the Co-Issuers shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. (d) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall applyLaw. (e) ~~The Co-Issuers may~~On the Effective Date, upon at least three (3) Business Days’ notice to the Series 2021-1 Class A-1 Administrative Agent and the applicable Letter of Credit Provider, effect a permanent reduction in the related L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Co-Issuers in writing and with the prior written consent of the Letter of Credit Provider and the Series 2021-1 Class A-1 Administrative Agent, the Letter of Credit Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the Outstanding Series 2021-1 Class A-1 Advance Notes and the L/C Commitment does not exceed the aggregate amount of the Commitments. (f) Each Letter of Credit Provider shall satisfy its obligations under this Section 2.06 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate as long as any such Letter of Credit issued would not be an Ineligible Interest Reserve Letter of Credit. If any such Letter of Credit would be an Ineligible Interest Reserve Letter of Credit, a Person selected by the Co-Issuers (at the reasonable expense of the Co-Issuers) shall issue such Letter of Credit; provided that any Letter of Credit issued by such Person would not be an Ineligible Interest Reserve Letter of Credit (the Letter of Credit Provider (or such Affiliate of the Letter of Credit Provider) or such other Person selected by the Co-Issuers (at the reasonable expense of the Co-Issuers), in each case in its capacity as the Co-Issuers of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). (g) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Co-Issuers in order to have any Letter of Credit issued by a Person selected by the Co-Issuers pursuant to Section 2.06(g) be a “Letter of Credit” that has been issued hereunder and such Person selected by the Co-Issuers be an “L/C Issuing Bank”. (h) Each Letter of Credit Provider and, if the Letter of Credit Provider is not the L/C Issuing Bank for any Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of all letters of credit ~~generally~~ and the reimbursement obligations attendant thereto issued pursuant to or under the ~~Letter~~ Existing DIP Agreement which are then outstanding shall be, from and after such date, deemed to be and shall become for all purposes, Letters of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit with Reimbursement Obligations attendant thereto issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2021-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to ~~the definition thereof~~and outstanding under this Agreement. ~~(k) Each Series 2021-1 Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.04 of the I~~

Appears in 1 contract

Sources: Credit Agreement (Service Merchandise Co Inc)

L/C Commitment. (a) Subject to the terms and conditions hereof, each ~~Letter of Credit Provider (or its permitted successors and assigns pursuant to Section 9.17)~~Issuing Lender, in reliance on the agreements of the ~~Committed Note Purchasers~~ L/C Tranche Lenders set forth in ~~Sections 2.07 and 2.08~~Section 3.4(a), agrees to ~~provide Interest Reserve Letters of Credit or other standby~~ issue letters of credit ~~requested by the Co-Issuers~~ and ~~agreed upon by Letter of Credit Provider in its sole discretion~~ bank guarantees (~~together with the Interest Reserve Letters of Credit each,~~ each a “Letter of Credit~~” and, collectively, the “Letters of Credit~~”) under the L/C Tranche Facility for the account of a Loan Party or a Subsidiary of a Loan Party (the ~~Co-Issuers or its designee~~ “Applicable Account Party”) on any Business Day ~~at any time until the date that is ten (10) Business Days prior to~~ during the Commitment ~~Termination Date to be issued in accordance with Section 2.06(g)~~ Period of such Issuing Lender in such form as may be ~~approved from time~~ reasonable and customary for the purpose thereof; provided, that (i) 509265-1725-11432-13209999 no Applicable Account Party shall request, and no Issuing Lender shall be required to ~~time by the Letter of Credit Provider; provided that the Letter of Credit Provider shall have no obligation or right to provide~~ issue, any Letter of Credit ~~on a requested issuance date~~ if, after giving effect to such ~~issuance~~issuance (and to any concurrent funding or prepayment of a Loan and to the application of proceeds thereof and to any concurrent expiration or termination or amendment or modification of any previously issued Letter of Credit), (iA) the Dollar Equivalent of the then Outstanding Amount of all Letters of Credit issued by such Issuing Lender would exceed such Issuing Lender's L/C ~~Obligations~~ Issuing Commitment then in effect, (B) the Total L/C Tranche Extensions of Credit would exceed the Total L/C ~~Commitment~~Tranche Commitment then in effect, (C) prior to the Collateral Release Date, the Dollar Equivalent of the then Outstanding Amount of Covered Debt would exceed the Borrowing Base at such date, (D) the Total Consolidated GMF Exposure would exceed $4 billion or (E) the sum of (x) 105% of the Dollar Equivalent of Letters of Credit denominated in Optional Currencies plus (y) the then Outstanding Amount of the Total L/C Tranche Extensions of Credit other than Letters of Credit denominated in Optional Currencies would exceed the Total L/C Tranche Commitments then in effect and (ii) the ~~Series 2021-1 Class A-1 Outstanding Principal Amount would exceed the Series 2021-1 Class A-1 Notes Maximum Principal Amount. Notwithstanding anything herein~~ Company shall be jointly and severally liable with respect to ~~the contrary, if a requested~~ each Letter of Credit ~~would cause~~ issued for the ~~Series 2021-1 Class A-1 Outstanding Principal Amount attributable to a Letter~~ account of ~~Credit Provider~~ an Applicable Account Party (~~in its capacity as Committed Note Purchaser and Letter of Credit Provider) to exceed its Commitment Amount (an “L/C Commitment Excess”~~other than the Company), the Investor Groups shall effectuate a reallocation of the Series 2021-1 Class A-1 Outstanding Principal Amounts to the extent necessary so that, immediately after such requested Letter of Credit is issued, no L/C Commitment Excess would exist; provided that the Co-Issuers shall not be liable for any Breakage Amounts resulting solely from such reallocations. Each Letter of Credit shall (x) be denominated in ~~Dollars,~~ Dollars or any Optional Currency and (y~~) have a face amount of at least $25,000 or, if less than $25,000, shall bear a reasonable administrative fee to be agreed upon by the Co-Issuers and the Letter of Credit Provider and (z~~) expire no later than the earlier of (A) the ~~first anniversary of its~~ date that is one year after the date of issuance of such Letter of Credit and (B) ~~the date that is ten (10)~~ five Business Days prior to the ~~Commitment~~ Termination Date ~~(the “Required Expiration Date”)~~of such Issuing Lender then in effect; ~~provided~~ provided, that any Letter of Credit with a one-year or shorter tenor may (1) provide for the subsequent or successive renewal or automatic ~~extensions~~ renewal thereof for additional ~~periods, each individually not to exceed one~~ one-year or shorter periods (which shall in no event extend beyond the ~~Required Expiration Date)~~ date referred to in foregoing clause (B), unless and to the extent that such Letter of Credit ~~Provider notifies each beneficiary~~ is Collateralized for the period following such date at 100% of the undrawn and unexpired amount of such Letter of Credit ~~at least thirty~~ if requested by the relevant Issuing Lender) or (302) ~~calendar days prior~~ continue past such date referred to in the foregoing clause (B) to the ~~then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit)~~ extent that such Letter of Credit ~~shall not be renewed; provided further that any Letter~~ is Collateralized for the period following such date at 100% of ~~Credit may have an expiration date that is later than~~ the ~~Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to~~ undrawn and unexpired amount of such Letter of Credit ~~has been fully cash collateralized~~ if requested by the ~~Co-Issuers in accordance~~ relevant Issuing Lender. Any such Collateralization of a Letter of Credit provided by a Loan Party or Applicable Account Party, as applicable, with ~~Section 4.02~~ respect to a Letter of Credit, together with accrued interest or ~~4.03 as of~~ earnings thereon, shall be terminated and (to the ~~Required Expiration Date and there are no other outstanding~~ extent not applied to satisfy L/C ~~Obligations with respect~~ Obligations) released to such Loan Party or Applicable Account Party, as applicable, as soon as practicable after the expiration or other termination of such Letter of Credit and the reimbursement of any amount drawn thereunder; provided, that, so long as of such 100% margin is maintained, the ~~Required Expiration Date~~ accrued interest or ~~(y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory~~ earnings on such Collateralization shall be released to the Letter of Credit Provider in its sole and absolute discretion have been made with the Letter of Credit Provider (and, if the Letter of Credit Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding Loan Party or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each Series 2021-1 Interest Reserve Letter of Credit shall (1) name the Indenture Trustee, for the benefit of the NoteholdersApplicable Account Party, as ~~the beneficiary thereof;~~ applicable, at any time and from time to time upon its request therefor. (2b) allow the Indenture Trustee to submit a notice of drawing in respect of such Series 2021-1 Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Interest Reserve Account, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such Series 2021-1 Interest Reserve Letter of Credit No Issuing Lender shall be paid directly into the Interest Reserve Account or otherwise used to pay Required Interest Reserve Draw Amounts in accordance with Sections 5.01(c) of the Indenture. The Letter of Credit Provider shall not at any time be obligated to ~~(I) provide~~ issue any Letter of Credit ~~hereunder~~ if such issuance would ~~violate~~conflict with, or cause such Issuing Lender or any L/C ~~Issuing Bank~~ Participant to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the Letter of Credit Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of CreditLaw. (a) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the Co-Issuers shall issue and shall cause the Indenture Trustee to authenticate the Series 2021-1 Class A-1 L/C Notes, which the Co-Issuers shall deliver to the Letter of Credit Providers on the Series 2021-1 Closing Date; provided that, if such Series 2021-1 Class L/C Note is an Uncertificated Note, the Indenture Trustee shall instead register it as described in Section 2.01(a) of the Indenture. Such Series 2021-1 Class A-1 L/C Note shall be dated the Series 2021-1 Closing Date, shall be registered in the name of the Letter of Credit Provider or in such other name or nominee as the Letter of Credit Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 and (unless it is an Uncertificated Note) shall be duly authenticated in accordance with the provisions of the Indenture. The issuance and sale of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series 2021-1 Closing Date will constitute a Borrowing in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series 2021-1 Class A-1 L/C Note and shall be deemed to be Series 2021-1 Class A-1 Outstanding Principal Amounts (in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount) for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for the purposes of accrual of interest. Subject to the terms of this Agreement, each drawing of a Letter of Credit will constitute a “L/C Subfacility Increase” in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note and reimbursements of any Unreimbursed L/C Drawings thereunder will constitute a “L/C Subfacility Decrease” in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note. Each Letter of Credit Provider and the Co-Issuers agree to promptly notify the Series 2021-1 Class A-1 Administrative Agent and the Indenture Trustee of any such decreases for which notice to the Series 2021-1 Class A-1 Administrative Agent is not otherwise provided hereunder. (b) The Co-Issuers may (or shall cause the Manager on its behalf to) from time to time request that any Letter of Credit Provider provide a new Letter of Credit by delivering to the Letter of Credit Provider at its address for notices specified herein an application therefor in the form required by the applicable Letter of Credit Provider or L/C Issuing Bank, as applicable (an “Application”), completed to the satisfaction of the Letter of Credit Provider, and such other certificates, documents and other papers and information as the Letter of Credit Provider may reasonably request. Upon receipt of any completed Application, the Letter of Credit Provider will notify the Series 2021-1 Class A-1 Administrative Agent and the Indenture Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration of the requested Letter of Credit (which shall comply with Section 2.06(a) and (i)) and, subject to the other conditions set forth herein and upon receipt of written confirmation from the Series 2021-1 Class A-1 Administrative Agent (based, with respect to any portion of the Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount held by any Person other than the Series 2021-1 Class A-1 Administrative Agent, solely on written notices received by the Series 2021-1 Class A-1 Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series 2021-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2021-1 Class A-1 Notes Maximum Principal Amount (provided that the Letter of Credit Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the Series 2021-1 Class A-1 Administrative Agent for purposes of determining whether the Letter of Credit Provider received such prior written confirmation from the Series 2021-1 Class A-1 Administrative Agent with respect to any Letter of Credit), the Letter of Credit Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the Letter of Credit Provider be required to provide any Letter of Credit earlier than three (3) Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section 2.06(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the Letter of Credit Provider and the Co-Issuers. The Letter of Credit Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the Series 2021-1 Class A-1 Administrative Agent) promptly following the issuance thereof. Each Letter of Credit Provider shall promptly furnish to the Series 2021-1 Class A-1 Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, and the Indenture Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (c) The Co-Issuers shall pay to the Letter of Credit Provider the L/C Monthly Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Monthly Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. In addition, the Co-Issuers shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. (d) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (e) The Co-Issuers may, upon at least three (3) Business Days’ notice to the Series 2021-1 Class A-1 Administrative Agent and the applicable Letter of Credit Provider, effect a permanent reduction in the related L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Co-Issuers in writing and with the prior written consent of the Letter of Credit Provider and the Series 2021-1 Class A-1 Administrative Agent, the Letter of Credit Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the Outstanding Series 2021-1 Class A-1 Advance Notes and the L/C Commitment does not exceed the aggregate amount of the Commitments. (f) Each Letter of Credit Provider shall satisfy its obligations under this Section 2.06 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate as long as any such Letter of Credit issued would not be an Ineligible Interest Reserve Letter of Credit. If any such Letter of Credit would be an Ineligible Interest Reserve Letter of Credit, a Person selected by the Co-Issuers (at the reasonable expense of the Co-Issuers) shall issue such Letter of Credit; provided that any Letter of Credit issued by such Person would not be an Ineligible Interest Reserve Letter of Credit (the Letter of Credit Provider (or such Affiliate of the Letter of Credit Provider) or such other Person selected by the Co-Issuers (at the reasonable expense of the Co-Issuers), in each case in its capacity as the Co-Issuers of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). (g) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Co-Issuers in order to have any Letter of Credit issued by a Person selected by the Co-Issuers pursuant to Section 2.06(g) be a “Letter of Credit” that has been issued hereunder and such Person selected by the Co-Issuers be an “L/C Issuing Bank”. (h) Each Letter of Credit Provider and, if the Letter of Credit Provider is not the L/C Issuing Bank for any Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2021-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) Each Series 2021-1 Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.04 of the I

Appears in 1 contract

Sources: Revolving Credit Agreement (General Motors Financial Company, Inc.)

L/C Commitment. (a) Subject to the terms and conditions hereof, ~~each Letter of Credit Provider (or its permitted successors and assigns pursuant to Section 9.17)~~the L/C Provider, in reliance on the agreements of the Committed Note Purchasers set forth in Sections ~~2.07~~ 2.08 and ~~2.08~~2.09, agrees to provide ~~Interest Reserve Letters of Credit or other~~ standby letters of credit ~~requested by the Co-Issuers and agreed upon by Letter of Credit Provider in its sole discretion~~ (~~together with the Interest Reserve Letters of Credit~~ each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Co-Issuers ~~or its designee~~ on any Business Day ~~at any time until~~ during the period commencing on the Series 2007-1 Closing Date and ending on the date that is ~~ten (10)~~ seven Business Days prior to the Commitment Termination Date to be issued in accordance with Section ~~2.06(g~~2.07(h) in such form as may be approved from time to time by the ~~Letter of Credit~~ L/C Provider; provided that the ~~Letter of Credit~~ L/C Provider shall have no obligation or right to provide any Letter of Credit ~~on a requested issuance date~~ if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, or (ii) the Series ~~2021~~2007-1 Class A-1 Outstanding Principal Amount would exceed the Series ~~2021~~2007-1 Class A-1 ~~Notes~~ Maximum Principal Amount~~. Notwithstanding anything herein to the contrary~~, ~~if a requested Letter of Credit would cause~~ (iii) the Series ~~2021~~2007-1 Class ~~A-1~~ A-1-A Outstanding Principal Amount ~~attributable to a Letter of Credit Provider (in its capacity as Committed Note Purchaser and Letter of Credit Provider) to~~ would exceed ~~its Commitment Amount (an “L/C Commitment Excess”), the Investor Groups shall effectuate a reallocation of~~ the Series ~~2021~~2007-1 Class ~~A-1~~ A-1-A Maximum Principal Amount or (iv) the Series 2007-1 Class A-1-X Outstanding Principal ~~Amounts to~~ Amount would exceed the ~~extent necessary so that, immediately after such requested Letter of Credit is issued, no L/C Commitment Excess would exist; provided that the Co~~Series 2007-~~Issuers shall not be liable for any Breakage Amounts resulting solely from such reallocations~~1 Class A-1-X Maximum Principal Amount. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $~~25,000 or, if less than $25,000, shall bear a reasonable administrative fee to be~~ 100,000 (unless otherwise agreed ~~upon~~ by the ~~Co-Issuers and the Letter of Credit Provider~~ L/C Provider) and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ~~ten (10)~~ seven Business Days prior to the Commitment Termination ~~Date (the “Required Expiration~~ Date”); provided that any Letter of Credit may provide for the ~~automatic extensions~~ renewal thereof for additional ~~periods, each individually~~ periods not to exceed one year (which shall in no event extend beyond the ~~Required Expiration Date~~date referred to in clause (B) unless the Letter of Credit Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be renewed; provided further that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn above). The L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the Co-Issuers in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory to the Letter of Credit Provider in its sole and absolute discretion have been made with the Letter of Credit Provider (and, if the Letter of Credit Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each Series 2021-1 Interest Reserve Letter of Credit shall (1) name the Indenture Trustee, for the benefit of the Noteholders, as the beneficiary thereof; (2) allow the Indenture Trustee to submit a notice of drawing in respect of such Series 2021-1 Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Interest Reserve Account, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such Series 2021-1 Interest Reserve Letter of Credit shall be paid directly into the Interest Reserve Account or otherwise used to pay Required Interest Reserve Draw Amounts in accordance with Sections 5.01(c) of the Indenture. The Letter of Credit Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would ~~violate~~conflict with, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the ~~Letter of Credit~~ L/C Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) ~~each~~ the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (ab) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the Co-Issuers shall issue and shall cause the Indenture Trustee to authenticate the initial Series ~~2021~~2007-1 Class A-1 L/C ~~Notes,~~ Notes for each L/C Sub-Class which the Co-Issuers shall deliver to the ~~Letter of Credit Providers~~ L/C Provider on the Series ~~2021~~2007-1 Closing Date~~; provided that, if such Series 2021-1 Class L/C Note is an Uncertificated Note, the Indenture Trustee shall instead register it as described in Section 2.01(a) of the Indenture~~. Such initial Series ~~2021~~2007-1 Class A-1 L/C ~~Note~~ Notes for each L/C Sub-Class shall be dated the Series ~~2021~~2007-1 Closing Date, shall be registered in the name of the ~~Letter of Credit~~ L/C Provider or its nominee, or in such other name ~~or nominee~~ as the ~~Letter of Credit~~ L/C Provider may request, shall have a maximum principal amount equal to the Applicable Sub-Class Percentage for such L/C Sub-Class of the L/C Commitment, shall have an initial outstanding principal amount equal to $0 the Applicable Sub-Class Percentage for such L/C Sub-Class of the Series 2007-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and ~~(unless it is an Uncertificated Note)~~ shall be duly authenticated in accordance with the provisions of the Indenture. ~~The~~ Each issuance ~~and sale~~ of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series ~~2021~~2007-1 Closing Date will constitute a ~~Borrowing~~ corresponding Subfacility Increase, on a pro rata basis, in the outstanding principal amount evidenced by the Series ~~2021~~2007-1 Class A-1 L/C ~~Note~~ Notes based on their respective Applicable Sub-Class Percentages, in an aggregate amount corresponding to the Undrawn L/C Face Amount of such Letter of ~~Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount~~Credit. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series ~~2021~~2007-1 Class A-1 L/C ~~Note and shall be deemed to be Series 2021~~Notes based on their respective Applicable Sub-1 Class ~~A-1 Outstanding Principal Amounts (in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount)~~ Percentages for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for ~~the~~ purposes of accrual of interest. Any payment of such principal in respect of Undrawn L/C Face Amounts shall be deposited into a cash collateral account as provided in Sections 4.02 and 4.03. Subject to the terms of this ~~Agreement~~Agreement and the Series 2007-1 Supplement, ~~each drawing of a Letter of Credit will constitute a “L/C Subfacility Increase” in~~ the outstanding principal amount evidenced by the Series ~~2021~~2007-1 Class A-1 L/C ~~Note and reimbursements~~ Notes may be increased by issuances of Letters of Credit or decreased by expirations thereof or payments of drawings thereunder or other circumstances resulting in the permanent reduction in any ~~Unreimbursed~~ Undrawn L/C ~~Drawings thereunder will constitute a “~~Face Amounts from time to time. The L/C ~~Subfacility Decrease” in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note. Each Letter of Credit~~ Provider and the Co-Issuers agree to promptly notify the ~~Series 2021-1~~ Class A-1 Administrative Agent and the Indenture Trustee of any such decreases for which notice to the ~~Series 2021-1~~ Class A-1 Administrative Agent is not otherwise provided hereunder. (bc) The Co-Issuers may ~~(or shall cause the Manager on its behalf to)~~ from time to time request that ~~any Letter of Credit~~ the L/C Provider provide a ~~new~~ Letter of Credit by delivering to the ~~Letter of Credit~~ L/C Provider at its address for notices specified herein an ~~application~~ Application therefor (in the form required by the applicable ~~Letter of Credit Provider or~~ L/C Issuing ~~Bank,~~ Bank as ~~applicable (an “Application”~~notified to the Co-Issuers by the L/C Provider), completed to the satisfaction of the ~~Letter of Credit~~ L/C Provider, and such other certificates, documents and other papers and information as the ~~Letter of Credit~~ L/C Provider may ~~reasonably request~~request on behalf of the L/C Issuing Bank. Upon receipt of any completed Application, the ~~Letter of Credit~~ L/C Provider ~~will~~ shall notify the ~~Series 2021-1~~ Class A-1 Administrative Agent and the Indenture Trustee in writing of the amount, the beneficiary ~~or beneficiaries~~ and the requested expiration of the requested Letter of Credit (which shall comply with Section ~~2.06(a) and (i)~~2.07(a) and, subject to the other conditions set forth herein and in the Series 2007-1 Supplement and upon receipt of ~~written~~ confirmation from the ~~Series 2021-1~~ Class A-1 Administrative Agent (based, with respect to any portion of the Series ~~2021~~2007-1 Class A-1 Outstanding ~~L/C~~ Subfacility Amount held by any Person other than the ~~Series 2021-1~~ Class A-1 Administrative Agent, solely on written notices received by the ~~Series 2021-1~~ Class A-1 Administrative Agent under this Agreement) that after giving effect to the requested issuance, (i) the Series ~~2021~~2007-1 Class A-1 Outstanding Principal Amount would not exceed the Series ~~2021~~2007-1 Class A-1 ~~Notes~~ Maximum Principal Amount, (ii) the Series 2007-1 Class A-1-A Outstanding Principal Amount would not exceed the Series 2007-1 Class A-1-A Maximum Principal Amount and (provided that the Letter of Credit Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of iii) the Series ~~2021~~2007-1 Class ~~A-1 Administrative Agent for purposes of determining whether the Letter of Credit Provider received such prior written confirmation from~~ A-1-X Outstanding Principal Amount would not exceed the Series ~~2021~~2007-1 Class ~~A-1 Administrative Agent with respect to any Letter of Credit)~~A-1-X Maximum Principal Amount, the ~~Letter of Credit~~ L/C Provider will cause such Application to be processed and the certificates, documents and other papers and information delivered in connection therewith ~~to be processed~~ in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the ~~Letter of Credit~~ L/C Provider be required to provide any Letter of Credit earlier than three ~~(3)~~ Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto~~, as provided in Section 2.06(a)~~) by issuing the original of such Letter of Credit to the beneficiary ~~or beneficiaries~~ thereof or as otherwise may be agreed to by the ~~Letter of Credit~~ L/C Provider and the Co-Issuers. The ~~Letter of Credit~~ L/C Provider shall furnish a copy of such Letter of Credit to the ~~Manager~~ Servicer (with a copy to the ~~Series 2021-1~~ Class A-1 Administrative Agent) promptly following the issuance thereof. ~~Each Letter of Credit~~ The L/C Provider shall promptly furnish to the ~~Series 2021-1~~ Class A-1 Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Indenture Trustee and the ~~Indenture Trustee~~Series 2007-1 Class A Insurer, written notice of the issuance of each Letter of Credit (including the amount thereof). (cd) The Co-Issuers shall jointly and severally pay ~~to the Letter of Credit Provider the L/C Monthly Fees~~ fees (~~as defined in the Series 2021-1 Class A-1 Notes Fee Letter,~~ the “L/C Monthly Fees”) with respect to each Letter of Credit at a per annum rate equal to the L/C Monthly Fees Rate calculated on the daily maximum amount then available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit if such maximum amount increases periodically pursuant to the terms of such Letter of Credit) during the applicable Interest Period, shared ratably among the Committed Note Purchasers and payable in arrears on each Payment Date in accordance with the ~~terms~~ applicable provisions of the Indenture. In addition, under the circumstances set forth in Section 4.4 of the Series ~~2021~~2007-1 Supplement, the Co-Issuers shall jointly and severally pay contingent additional fees in respect of the outstanding Letters of Credit in an amount equal to the Series 2007-1 Class A-1 ~~Notes Fee Letter~~ Contingent Additional L/C Fees payable pursuant to such Section 4.4 and ~~subject to~~ shared ratably among the ~~Priority of Payments.~~ Committed Note Purchasers. (e) In addition, the Co-Issuers shall jointly and severally pay to or reimburse the ~~Letter of Credit~~ L/C Provider for ~~its own account or~~ the following amounts for the account of the applicable L/C Issuing ~~Bank the L/C Issuance Fees~~ Bank: (~~as defined in the Series 2021-1 Class A-1 Notes Fee Letter,~~ i) fronting fees (the “L/C ~~Issuance~~ Fronting Fees”) with respect to each Letter of Credit issued by it at a per annum rate equal to the L/C Fronting Fees Rate calculated on the daily maximum amount then available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit if such maximum amount increases periodically pursuant to the terms of such Letter of Credit) during the applicable Interest Accrual Period, payable in arrears on each Payment Date in accordance with the ~~terms~~ applicable provisions of the ~~Series 2021-1 Class A-1 Notes Fee~~ Indenture, and (ii) such normal and customary costs and expenses as are incurred or charged by the L/C Issuing Bank in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of Credit and ~~subject~~ separately charged to account parties (the “L/C Additional Charges”). Subject to the Priority of Payments, the L/C Additional Charges are due and payable within ten (10) Business Days of demand and are nonrefundable. (df) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (eg) The Co-Issuers may, upon ~~at least~~ three ~~(3)~~ Business Days’ notice to the ~~Series 2021-1~~ Class A-1 Administrative Agent and the ~~applicable Letter of Credit~~ L/C Provider, effect a permanent reduction in the ~~related~~ L/C Commitment; provided that any such reduction will be limited to the ~~undrawn~~ unused portion of the L/C Commitment. If requested by the Co-Issuers in writing and with the prior written consent of the ~~Letter of Credit Provider and the Series 2021-1~~ Class A-1 Administrative Agent, the ~~Letter of Credit~~ L/C Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided further that, after giving effect thereto, the aggregate amount of ~~each of~~ the ~~Outstanding Series 2021-1 Class A-1 Advance Notes~~ Swingline Commitment and the L/C Commitment does not exceed the aggregate amount of the Commitments. Any reduction or increase made pursuant to this Section 2.07(g) shall be made ratably among the Series 2007-1 Class A-1 L/C Notes of each L/C Sub-Class based on their respective Applicable Sub-Class Percentages. (fh) ~~Each Letter of Credit~~ The L/C Provider shall have the right to satisfy its obligations under this Section ~~2.06~~ 2.07 with respect to providing any Letter of Credit hereunder either by issuing such Letter of Credit itself or through an Affiliate as long as any such Letter of Credit issued would not be an Ineligible Interest Reserve Letter of Credit. If any such Letter of Credit would be an Ineligible Interest Reserve Letter of Credit, a by causing another Person selected by the ~~Co-Issuers (at the reasonable expense of the Co-Issuers) shall~~ L/C Provider to issue such ~~Letter of Credit; provided that any Letter of Credit issued by such Person would not be an Ineligible Interest Reserve~~ Letter of Credit (the L/C Provider in its capacity as the issuer of such Letter of Credit ~~Provider (or such Affiliate of the Letter of Credit Provider)~~ or such other Person selected by the ~~Co-Issuers (at the reasonable expense of the Co-Issuers), in each case in its capacity as the Co-Issuers of such Letter of Credit~~ L/C Provider being referred to as the “L/C Issuing Bank~~” with respect to such Letter of Credit~~”). (g) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Co-Issuers in order to have any Letter of Credit issued by a Person selected by the Co-Issuers pursuant to Section 2.06(g) be a “Letter of Credit” ; provided that ~~has been issued hereunder and such Person selected by the Co-Issuers be an “L/C Issuing Bank”. (h) Each Letter of Credit Provider and, if the Letter of Credit Provider is not~~ the L/C Issuing Bank ~~for any Letter of Credit~~is a U.S. commercial bank that has, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of such issuance, (i) ~~shall apply to each standby Letter~~ a short-term certificate of ~~Credit issued hereunder.~~ deposit rating of not less than “P-1” from ▇▇▇▇▇’▇ and “A-1” from S&P and (jii) ~~For the avoidance~~ a long-term unsecured debt rating of ~~doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts~~ not less than “Aa1” from ▇▇▇▇▇’▇ and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2021-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) Each Series 2021-1 Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.04 of the I“A+” from S&P.

Appears in 1 contract

Sources: Class a 1 Note Purchase Agreement (Ihop Corp)

L/C Commitment. Subject to the terms and conditions hereof, each Letter of Credit Provider (or its permitted successors and assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.07 and 2.08, agrees to provide ~~Interest~~ Liquidity Reserve Letters of Credit or other standby letters of credit requested by ~~the Co-~~Issuers and agreed upon by Letter of Credit Provider in its sole discretion (together with the ~~Interest~~ Liquidity Reserve Letters of Credit each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the ~~Co-~~Issuers or ~~its~~ their designee on any Business Day at any time until the date that is ~~ten~~ thirty (1030) Business Days prior to the Commitment Termination Date to be issued in accordance with Section ~~2.06(g~~2.06(b) in such form as may be approved from time to time by the Letter of Credit Provider; provided that the Letter of Credit Provider shall have no obligation or right to provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, or (ii) the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Outstanding Principal Amount would exceed the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Notes Maximum Principal Amount. Notwithstanding anything herein to the contrary, if a requested Letter of Credit would cause the Series 2021-1 Class A-1 Outstanding Principal Amount attributable to a Letter of Credit Provider (in its capacity as Committed Note Purchaser and Letter of Credit Provider) to exceed its Commitment Amount (an “L/C Commitment Excess”), the Investor Groups shall effectuate a reallocation of the Series 2021-1 Class A-1 Outstanding Principal Amounts to the extent necessary so that, immediately after such requested Letter of Credit is issued, no L/C Commitment Excess would exist; provided that the Co-Issuers shall not be liable for any Breakage Amounts resulting solely from such reallocations. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $~~25,000~~ 500,000 or, if less than $~~25,000~~500,000, shall bear a reasonable administrative fee to be agreed upon by the ~~Co-~~Issuers and the Letter of Credit Provider and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ten (10) Business Days prior to the Commitment Termination Date (the “Required Expiration Date”); provided ~~that~~ that, any Letter of Credit may provide for the automatic extensions thereof for additional periods, each individually not to exceed one year (which shall in no event extend beyond the Required Expiration Date) unless the Letter of Credit Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be renewed; ~~provided further~~ provided, further, that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the ~~Co-~~Issuers in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to ~~Interest~~ Liquidity Reserve Letters of Credit, arrangements satisfactory to the Letter of Credit Provider in its sole and absolute discretion have been made with the Letter of Credit Provider (and, if the Letter of Credit Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each Series ~~2021~~2025-~~1 Interest~~ 2 Liquidity Reserve Letter of Credit shall (1) name the Indenture Trustee, for the benefit of the Noteholders, as the ~~beneficiary~~ joint beneficiaries thereof; (2) allow either the Indenture Trustee or the Servicer, individually and not jointly, to submit a notice of drawing in respect of such Series ~~2021~~2025-~~1 Interest~~ 2 Liquidity Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the ~~Interest~~ Liquidity Reserve Account, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such Series ~~2021~~2025-~~1 Interest~~ 2 Liquidity Reserve Letter of Credit shall be paid directly into the ~~Interest~~ Liquidity Reserve Account or otherwise used to pay Required ~~Interest~~ Liquidity Reserve Draw Amounts in accordance with Sections 5.01(c) of the Indenture. The Letter of Credit Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the Letter of Credit Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (a) On the terms and conditions set forth in the Indenture and this ~~Agreement~~Agreement (including Section 7.03), and in reliance on the covenants, representations and agreements set forth herein and therein, the ~~Co-~~Issuers shall issue and shall cause the Indenture Trustee to authenticate the Series ~~2021~~2025-1 2 Class ~~A-1 L/C~~ A-1-V ▇/C Notes, which the ~~Co-~~Issuers shall deliver to the Letter of Credit Providers on the Series ~~2021~~2025-1 2 Closing Date; provided that, if such Series ~~2021~~2025-1 2 Class L/C Note is an Uncertificated Note, the Indenture Trustee shall instead register it as described in ~~Section 2.01(a) of~~ the Indenture. Such Series ~~2021~~2025-1 2 Class ~~A-1 L/C~~ A-1-V ▇/C Note shall be dated the Series ~~2021~~2025-1 2 Closing Date, shall be registered in the name of the Letter of Credit Provider or in such other name or nominee as the Letter of Credit Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 and (unless it is an Uncertificated Note) shall be duly authenticated in accordance with the provisions of the Indenture. The ~~issuance and sale of the~~ Series ~~2021~~2025-1 2 Class ~~A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021~~A-1-~~1 Class A-1 L/C~~ V ▇/C Notes shall be Variable Funding Notes ~~that are Class A-1 Notes~~ payable in accordance with the ~~Indenture, the Series 2021-1 Supplement~~ Indenture and this Agreement. Each drawing on a Letter of Credit after the Series ~~2021~~2025-1 2 Closing Date will constitute a Borrowing in the outstanding principal amount evidenced by the Series ~~2021~~2025-1 2 Class ~~A-1 L/C~~ A-1-V ▇/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of Credit and shall be deemed to be a Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Outstanding L/C Subfacility Amount. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series ~~2021~~2025-1 2 Class ~~A-1 L/C~~ A-1-V ▇/C Note and shall be deemed to be Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Outstanding Principal Amounts (in the form of Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Outstanding L/C Subfacility Amount) for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for the purposes of accrual of interest. Subject to the terms of this Agreement, each drawing of a Letter of Credit will constitute a “L/C Subfacility Increase” in the outstanding principal amount evidenced by the Series ~~2021~~2025-1 2 Class ~~A-1 L/C~~ A-1-V ▇/C Note and reimbursements of any Unreimbursed L/C Drawings thereunder will constitute a “L/C Subfacility Decrease” in the outstanding principal amount evidenced by the Series ~~2021~~2025-1 2 Class ~~A-1 L/C~~ A-1-V ▇/C Note. Each Letter of Credit Provider and the ~~Co-~~Issuers agree to promptly notify the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Administrative Agent and the Indenture Trustee of any such decreases for which notice to the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Administrative Agent is not otherwise provided hereunder. (b) The ~~Co-~~Issuers may (or shall cause the Manager on ~~its~~ their behalf to) from time to time request that any Letter of Credit Provider provide a new Letter of Credit by delivering to the Letter of Credit Provider at its address for notices specified herein an application therefor in the form required by the applicable Letter of Credit Provider or (who shall promptly deliver a copy thereof to the relevant L/C Issuing Bank, as ~~applicable~~ applicable) (an “Application”), completed to the satisfaction of the Letter of Credit Provider, and such other certificates, documents and other papers and information as the Letter of Credit Provider may reasonably request. Upon receipt of any completed Application, the Letter of Credit Provider will notify the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Administrative ~~Agent~~ Agent, the Servicer and the Indenture Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration of the requested Letter of Credit (which shall comply with Section 2.06(a) and (i)) and, subject to the other conditions set forth herein and upon receipt of written confirmation from the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Administrative Agent (based, with respect to any portion of the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Outstanding L/C Subfacility Amount held by any Person other than the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Administrative Agent, solely on written notices received by the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Outstanding Principal Amount would not exceed the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Notes Maximum Principal Amount (provided that the Letter of Credit Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Administrative Agent for purposes of determining whether the Letter of Credit Provider received such prior written confirmation from the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Administrative Agent with respect to any Letter of Credit), the Letter of Credit Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the Letter of Credit Provider be required to provide any Letter of Credit earlier than three (3) Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section 2.06(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the Letter of Credit Provider and the ~~Co-~~Issuers. The Letter of Credit Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Administrative Agent) promptly following the issuance thereof. Each Letter of Credit Provider shall promptly furnish to the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, and the Indenture Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (c) The ~~Co-~~Issuers shall pay to the ~~Letter~~ Series 2025-2 Class A-1-V Administrative Agent, for the ratable account of ~~Credit Provider the L/C Monthly Fees~~ each Committed Note Purchaser (~~as defined in the Series 2021-1 Class A-1 Notes Fee Letter~~based on their respective Committed Note Purchaser Percentages), the “L/C ~~Monthly~~ Participation Fees”) ” as defined in, and in accordance with the terms of of, the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Notes Fee ~~Letter~~ Letter, and subject to the Priority of Payments. In addition, the ~~Co-~~Issuers shall pay to (or ~~reimburse the~~ reimburse) each Letter of Credit ~~Provider~~ Provider, for its own account (or for the account of the applicable L/C Issuing ~~Bank~~ Bank) the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such Letter of Credit Provider relating to Letters of Credit issued or maintained by such Letter of Credit Provider (or the applicable L/C ~~Issuance Fees (~~Issuing Bank), in each case as ~~defined~~ may be agreed in writing between the Issuers and such Letter of Credit Provider and from time to time in effect, and which such customary fees and standard costs and charges shall accrue during the applicable Interest Accrual Period and be payable in arrears on each Payment Date from and after the Series ~~2021~~2025-1 2 Closing Date and prior to the Series 2025-2 Class ~~A-1 Notes Fee Letter, the “L/C Issuance Fees”)~~ A-1-V Termination Date in accordance with the ~~terms~~ applicable provisions of the ~~Series 2021-1 Class A-1 Notes Fee Letter~~ Indenture and subject to the Priority of Payments. (d) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (e) The ~~Co-~~Issuers may, upon at least three (3) Business Days’ notice to the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Administrative Agent and the applicable Letter of Credit Provider, effect a permanent reduction in the related L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the ~~Co-~~Issuers in writing and with the prior written consent of the Letter of Credit Provider and the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Administrative Agent, the Letter of Credit Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the Outstanding Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Advance Notes and the L/C Commitment does not exceed the aggregate amount of the Commitments. (f) Each Letter of Credit Provider shall satisfy its obligations under this Section 2.06 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate as long as any such Letter of Credit issued would not be an Ineligible ~~Interest~~ Liquidity Reserve Letter of Credit. If any such Letter of Credit would be an Ineligible ~~Interest~~ Liquidity Reserve Letter of Credit, a Person selected by the ~~Co-~~Issuers (at the reasonable expense of the ~~Co-~~Issuers) shall issue such Letter of Credit; provided that any Letter of Credit issued by such Person would not be an Ineligible ~~Interest~~ Liquidity Reserve Letter of Credit (the Letter of Credit Provider (or such Affiliate of the Letter of Credit Provider) or such other Person selected by the ~~Co-~~Issuers (at the reasonable expense of the ~~Co-~~Issuers), in each case in its capacity as the ~~Co-Issuers~~ issuer of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). (g) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the ~~Co-~~Issuers in order to have any Letter of Credit issued by a Person selected by the ~~Co-~~Issuers pursuant to Section ~~2.06(g~~2.06(f) to be a “Letter of Credit” that has been issued hereunder and such Person selected by the ~~Co-~~Issuers be an “L/C Issuing Bank”. (h) Each Letter of Credit Provider and, if the Letter of Credit Provider is not the L/C Issuing Bank for any Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the ~~Co-~~Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series ~~2021~~2025-1 2 Class ~~A-1~~ A-1-V Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) ~~Each~~ Notwithstanding anything in the contrary herein, each Series ~~2021~~2025-~~1 Interest~~ 2 Liquidity Reserve Letter of Credit (including all drawings thereunder) shall be subject to ~~Section 4.04~~ Sections 4.05(b), (c), (d), (e), (g) and (j) of the IIndenture in all respects.

Appears in 1 contract

Sources: Class a 1 v Note Purchase Agreement (Uniti Group Inc.)

L/C Commitment. Subject to the terms and conditions hereof, each Letter of Credit Provider (or its permitted successors and assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.07 and 2.08, agrees to provide ~~Interest~~ Liquidity Reserve Letters of Credit or other standby letters of credit requested by ~~the Co-Issuers~~ Issuer and agreed upon by Letter of Credit Provider in its sole discretion (together with the ~~Interest~~ Liquidity Reserve Letters of Credit each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the ~~Co-Issuers~~ Issuer or its designee on any Business Day at any time until the date that is ~~ten~~ thirty (1030) Business Days prior to the Commitment Termination Date to be issued in accordance with Section ~~2.06(g~~2.06(b) in such form as may be approved from time to time by the Letter of Credit Provider; provided that the Letter of Credit Provider shall have no obligation or right to provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, or (ii) the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Outstanding Principal Amount would exceed the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Notes Maximum Principal Amount. Notwithstanding anything herein to the contrary, if a requested Letter of Credit would cause the Series 2021-1 Class A-1 Outstanding Principal Amount attributable to a Letter of Credit Provider (in its capacity as Committed Note Purchaser and Letter of Credit Provider) to exceed its Commitment Amount (an “L/C Commitment Excess”), the Investor Groups shall effectuate a reallocation of the Series 2021-1 Class A-1 Outstanding Principal Amounts to the extent necessary so that, immediately after such requested Letter of Credit is issued, no L/C Commitment Excess would exist; provided that the Co-Issuers shall not be liable for any Breakage Amounts resulting solely from such reallocations. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $~~25,000~~ 500,000 or, if less than $~~25,000~~500,000, shall bear a reasonable administrative fee to be agreed upon by the ~~Co-Issuers~~ Issuer and the Letter of Credit Provider and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ten (10) Business Days prior to the Commitment Termination Date (the “Required Expiration Date”); provided ~~that~~ that, any Letter of Credit may provide for the automatic extensions thereof for additional periods, each individually not to exceed one year (which shall in no event extend beyond the Required Expiration Date) unless the Letter of Credit Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be renewed; ~~provided further~~ provided, further, that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the ~~Co-Issuers~~ Issuer in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to ~~Interest~~ Liquidity Reserve Letters of Credit, arrangements satisfactory to the Letter of Credit Provider in its sole and absolute discretion have been made with the Letter of Credit Provider (and, if the Letter of Credit Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each Series ~~2021~~2026-1 ~~Interest~~ Liquidity Reserve Letter of Credit shall (1) name the Indenture ~~Trustee,~~ Trustee for the benefit of the ~~Noteholders,~~ Noteholders and the other Secured Parties and the Servicer as the ~~beneficiary~~ joint beneficiaries thereof; (2) allow either the Indenture Trustee or the Servicer, individually and not jointly, to submit a notice of drawing in respect of such Series ~~2021~~2026-1 ~~Interest~~ Liquidity Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the ~~Interest~~ Liquidity Reserve Account, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such Series ~~2021~~2026-1 ~~Interest~~ Liquidity Reserve Letter of Credit shall be paid directly into the ~~Interest~~ Liquidity Reserve Account or otherwise used to pay Required ~~Interest~~ Liquidity Reserve Draw Amounts in accordance with Sections 5.01(c) of the Indenture. The Letter of Credit Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the Letter of Credit Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (a) On the terms and conditions set forth in the Indenture and this ~~Agreement~~Agreement (including Section 7.03), and in reliance on the covenants, representations and agreements set forth herein and therein, the ~~Co-Issuers~~ Issuer shall issue and shall cause the Indenture Trustee to authenticate the Series ~~2021~~2026-1 Class ~~A-1 L/C~~ A-1-V ▇/C Notes, which the ~~Co-Issuers~~ Issuer shall deliver to the Letter of Credit Providers on the Series ~~2021~~2026-1 Closing Date; provided that, if such Series ~~2021~~2026-1 Class L/C Note is an Uncertificated Note, the Indenture Trustee shall instead register it as described in ~~Section 2.01(a) of~~ the Indenture. Such Series ~~2021~~2026-1 Class ~~A-1 L/C~~ A-1-V ▇/C Note shall be dated the Series ~~2021~~2026-1 Closing Date, shall be registered in the name of the Letter of Credit Provider or in such other name or nominee as the Letter of Credit Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 and (unless it is an Uncertificated Note) shall be duly authenticated in accordance with the provisions of the Indenture. The ~~issuance and sale of the~~ Series ~~2021~~2026-1 Class ~~A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021~~A-1-~~1 Class A-1 L/C~~ V ▇/C Notes shall be Variable Funding Notes ~~that are Class A-1 Notes~~ payable in accordance with the ~~Indenture, the Series 2021-1 Supplement~~ Indenture and this Agreement. Each drawing on a Letter of Credit after the Series ~~2021~~2026-1 Closing Date will constitute a Borrowing in the outstanding principal amount evidenced by the Series ~~2021~~2026-1 Class ~~A-1 L/C~~ A-1-V ▇/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of Credit and shall be deemed to be a Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Outstanding L/C Subfacility Amount. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series ~~2021~~2026-1 Class ~~A-1 L/C~~ A-1-V ▇/C Note and shall be deemed to be Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Outstanding Principal Amounts (in the form of Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Outstanding L/C Subfacility Amount) for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for the purposes of accrual of interest. Subject to the terms of this Agreement, each drawing of a Letter of Credit will constitute a “L/C Subfacility Increase” in the outstanding principal amount evidenced by the Series ~~2021~~2026-1 Class ~~A-1 L/C~~ A-1-V ▇/C Note and reimbursements of any Unreimbursed L/C Drawings thereunder will constitute a “L/C Subfacility Decrease” in the outstanding principal amount evidenced by the Series ~~2021~~2026-1 Class ~~A-1 L/C~~ A-1-V ▇/C Note. Each Letter of Credit Provider and the ~~Co-Issuers agree~~ Issuer agrees to promptly notify the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Administrative Agent and the Indenture Trustee of any such decreases for which notice to the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Administrative Agent is not otherwise provided hereunder. (b) The ~~Co-Issuers~~ Issuer may (or shall cause the Manager on ~~its~~ their behalf to) from time to time request that any Letter of Credit Provider provide a new Letter of Credit by delivering to the Letter of Credit Provider at its address for notices specified herein an application therefor in the form required by the applicable Letter of Credit Provider or (who shall promptly deliver a copy thereof to the relevant L/C Issuing Bank, as ~~applicable~~ applicable) (an “Application”), completed to the satisfaction of the Letter of Credit Provider, and such other certificates, documents and other papers and information as the Letter of Credit Provider may reasonably request. Upon receipt of any completed Application, the Letter of Credit Provider will notify the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Administrative ~~Agent~~ Agent, the Servicer and the Indenture Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration of the requested Letter of Credit (which shall comply with Section 2.06(a) and (i)) and, subject to the other conditions set forth herein and upon receipt of written confirmation from the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Administrative Agent (based, with respect to any portion of the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Outstanding L/C Subfacility Amount held by any Person other than the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Administrative Agent, solely on written notices received by the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Outstanding Principal Amount would not exceed the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Notes Maximum Principal Amount (provided that the Letter of Credit Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Administrative Agent for purposes of determining whether the Letter of Credit Provider received such prior written confirmation from the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Administrative Agent with respect to any Letter of Credit), the Letter of Credit Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the Letter of Credit Provider be required to provide any Letter of Credit earlier than three (3) Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section 2.06(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the Letter of Credit Provider and the ~~Co-Issuers~~Issuer. The Letter of Credit Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Administrative Agent) promptly following the issuance thereof. Each Letter of Credit Provider shall promptly furnish to the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, and the Indenture Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (c) The ~~Co-Issuers~~ Issuer shall pay to the ~~Letter of Credit Provider the L/C Monthly Fees (as defined in the~~ Series ~~2021~~2026-1 Class ~~A-1 Notes Fee Letter~~A-1-V Administrative Agent, for the ratable account of each Committed Note Purchaser (based on their respective Committed Note Purchaser Percentages), the “L/C ~~Monthly~~ Participation Fees”) ” as defined in, and in accordance with the terms of of, the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Notes Fee ~~Letter~~ Letter, and subject to the Priority of Payments. In addition, the ~~Co-Issuers~~ Issuer shall pay to (or ~~reimburse the~~ reimburse) each Letter of Credit ~~Provider~~ Provider, for its own account (or for the account of the applicable L/C Issuing ~~Bank~~ Bank) the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such Letter of Credit Provider relating to Letters of Credit issued or maintained by such Letter of Credit Provider (or the applicable L/C ~~Issuance Fees (~~Issuing Bank), in each case as ~~defined~~ may be agreed in writing between the Issuer and such Letter of Credit Provider and from time to time in effect, and which such customary fees and standard costs and charges shall accrue during the applicable Interest Accrual Period and be payable in arrears on each Payment Date from and after the Series ~~2021~~2026-1 Closing Date and prior to the Series 2026-1 Class ~~A-1 Notes Fee Letter, the “L/C Issuance Fees”)~~ A-1-V Termination Date in accordance with the ~~terms~~ applicable provisions of the ~~Series 2021-1 Class A-1 Notes Fee Letter~~ Indenture and subject to the Priority of Payments. (d) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (e) The ~~Co-Issuers~~ Issuer may, upon at least three (3) Business Days’ notice to the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Administrative Agent and the applicable Letter of Credit Provider, effect a permanent reduction in the related L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the ~~Co-Issuers~~ Issuer in writing and with the prior written consent of the Letter of Credit Provider and the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Administrative Agent, the Letter of Credit Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the Outstanding Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Advance Notes and the L/C Commitment does not exceed the aggregate amount of the Commitments. (f) Each Letter of Credit Provider shall satisfy its obligations under this Section 2.06 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate as long as any such Letter of Credit issued would not be an Ineligible ~~Interest~~ Liquidity Reserve Letter of Credit. If any such Letter of Credit would be an Ineligible ~~Interest~~ Liquidity Reserve Letter of Credit, a Person selected by the ~~Co-Issuers~~ Issuer (at the reasonable expense of the ~~Co-Issuers~~Issuer) shall issue such Letter of Credit; provided that any Letter of Credit issued by such Person would not be an Ineligible ~~Interest~~ Liquidity Reserve Letter of Credit (the Letter of Credit Provider (or such Affiliate of the Letter of Credit Provider) or such other Person selected by the ~~Co-Issuers~~ Issuer (at the reasonable expense of the ~~Co-Issuers~~Issuer), in each case in its capacity as the ~~Co-Issuers~~ issuer of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). (g) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the ~~Co-Issuers~~ Issuer in order to have any Letter of Credit issued by a Person selected by the ~~Co-Issuers~~ Issuer pursuant to Section ~~2.06(g~~2.06(f) to be a “Letter of Credit” that has been issued hereunder and such Person selected by the ~~Co-Issuers~~ Issuer be an “L/C Issuing Bank”. (h) Each Letter of Credit Provider and, if the Letter of Credit Provider is not the L/C Issuing Bank for any Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the ~~Co-Issuers~~ Issuer when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series ~~2021~~2026-1 Class ~~A-1~~ A-1-V Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) ~~Each~~ Notwithstanding anything in the contrary herein, each Series ~~2021~~2026-1 ~~Interest~~ Liquidity Reserve Letter of Credit (including all drawings thereunder) shall be subject to ~~Section 4.04~~ Sections 4.05(b), (c), (d), (e), (g) and (j) of the IIndenture in all resp

Appears in 1 contract

Sources: Note Purchase Agreement (Uniti Group Inc.)

L/C Commitment. (a) Subject to the terms and conditions hereof, ~~each Letter of Credit~~ the L/C Provider (or its permitted ~~successors and~~ assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections ~~2.07~~ 2.08 and ~~2.08~~2.09, agrees to provide standby letters of credit, including Interest Reserve Letters of Credit ~~or other standby letters of credit requested by the Co-Issuers and agreed upon by Letter of Credit Provider in its sole discretion~~ (~~together with the Interest Reserve Letters of Credit~~ each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the ~~Co-Issuers~~ Issuer or its designee on any Business Day ~~at any time until~~ during the period commencing on the Series 2020-1 Closing Date and ending on the date that is ten (10) Business Days prior to the Commitment Termination Date to be issued in accordance with Section ~~2.06(g~~2.07(h) in such form as may be approved from time to time by the ~~Letter of Credit~~ L/C Provider; provided that the ~~Letter of Credit~~ L/C Provider shall have no obligation or right to provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C ~~Commitment,~~ Commitment or (ii) the Series ~~2021~~2020-1 Class A-1 Outstanding Principal Amount would exceed the Series ~~2021~~2020-1 Class A-1 Notes Maximum Principal Amount. Notwithstanding anything herein to the contrary, if a requested Letter of Credit would cause the Series ~~2021~~2020-1 Class A-1 Outstanding Principal Amount attributable to ~~a Letter of Credit~~ the L/C Provider (in its capacity as Committed Note Purchaser and ~~Letter of Credit~~ L/C Provider) to exceed its Commitment Amount (an “~~L/C~~ LC Commitment Excess”), the Investor Groups shall effectuate a reallocation of the Series ~~2021~~2020-1 Class A-1 Outstanding Principal Amounts to the extent necessary so that, immediately after such requested Letter of Credit is issued, no ~~L/C~~ LC Commitment Excess would exist; provided that the ~~Co-Issuers~~ Issuer shall not be liable for any Series 2020-1 Breakage Amounts resulting solely from any such reallocations. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $25,000 or, if less than $25,000, shall bear a reasonable administrative fee to be agreed upon by the ~~Co-Issuers~~ Issuer and the ~~Letter of Credit~~ L/C Provider and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ten (10) Business Days prior to the Commitment Termination Date (the “Required Expiration Date”); provided that any Letter of Credit may provide for the automatic ~~extensions~~ renewal thereof for additional periods, each individually not to exceed one year (which shall in no event extend beyond the Required Expiration Date) unless the ~~Letter of Credit~~ L/C Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be renewed; provided further that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the ~~Co-Issuers~~ Issuer in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory to the ~~Letter of Credit~~ L/C Provider in its sole and absolute discretion have been made with the ~~Letter of Credit~~ L/C Provider (and, if the ~~Letter of Credit~~ L/C Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each Series 2021-1 Interest Reserve Letter of Credit shall (1) name the Indenture Trustee, for the benefit of the Noteholders, as the beneficiary thereof; (2) allow the Indenture Trustee to submit a notice of drawing in respect of such Series 2021-1 Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Interest Reserve Account, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such Series 2021-1 Interest Reserve Letter of Credit shall be paid directly into the Interest Reserve Account or otherwise used to pay Required Interest Reserve Draw Amounts in accordance with Sections 5.01(c) of the Indenture. The ~~Letter of Credit~~ L/C Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the ~~Letter of Credit~~ L/C Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (ab) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the ~~Co-Issuers~~ Issuer shall issue and shall cause the ~~Indenture~~ Trustee to authenticate the Series ~~2021~~2020-1 Class A-1 L/C ~~Notes~~Note, which the ~~Co-Issuers~~ Issuer shall deliver to the ~~Letter of Credit Providers~~ L/C Provider on the Series ~~2021~~2020-1 Closing Date; provided that, if such Series ~~2021~~2020-1 Class A-1 L/C Note is an Uncertificated Note, the ~~Indenture~~ Trustee shall instead register it as described in Section ~~2.01(a~~4.1(f) of the ~~Indenture~~Series 2020-1 Supplement. Such Series ~~2021~~2020-1 Class A-1 L/C Note shall be dated the Series ~~2021~~2020-1 Closing Date, shall be registered in the name of the ~~Letter of Credit~~ L/C Provider or in such other name or nominee as the ~~Letter of Credit~~ L/C Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 the Series 2020-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and (unless it is an Uncertificated Note) shall be duly authenticated in accordance with the provisions of the Indenture. ~~The~~ Each issuance ~~and sale~~ of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series ~~2021~~2020-1 Closing Date will constitute ~~a Borrowing~~ an Increase in the outstanding principal amount evidenced by the Series ~~2021~~2020-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of ~~Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount~~Credit. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series ~~2021~~2020-1 Class A-1 L/C Note and shall be deemed to be Series ~~2021~~2020-1 Class A-1 Outstanding Principal Amounts ~~(in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount)~~ for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for ~~the~~ purposes of accrual of interest. Subject to the terms of this ~~Agreement~~Agreement and the Series 2020-1 Supplement, each ~~drawing~~ issuance of a Letter of Credit will constitute a ~~“L/C~~ Subfacility ~~Increase”~~ Increase in the outstanding principal amount evidenced by the Series ~~2021~~2020-1 Class A-1 L/C Note and the expiration of any Letter of Credit or reimbursements of any Unreimbursed L/C Drawings thereunder or other circumstances resulting in the permanent reduction in any Undrawn L/C Face Amounts from time to time will constitute a ~~“L/C~~ Subfacility ~~Decrease”~~ Decrease in the outstanding principal amount evidenced by the Series ~~2021~~2020-1 Class A-1 L/C Note. ~~Each Letter of Credit~~ The L/C Provider and the ~~Co-Issuers~~ Issuer agree to promptly notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee of any such decreases for which notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent is not otherwise provided hereunder. (bc) The ~~Co-Issuers~~ Issuer may (or shall cause the Manager on its behalf to) from time to time request that ~~any Letter of Credit~~ the L/C Provider provide a new Letter of Credit by delivering to the ~~Letter of Credit~~ L/C Provider at its address for notices specified herein an application therefor (in the form required by the applicable ~~Letter of Credit Provider or~~ L/C Issuing ~~Bank,~~ Bank as ~~applicable~~ notified to the Issuer by the L/C Provider) (an “Application”), completed to the satisfaction of the ~~Letter of Credit~~ L/C Provider, and such other certificates, documents and other papers and information as the ~~Letter of Credit~~ L/C Provider may reasonably ~~request~~request on behalf of the L/C Issuing Bank. Upon receipt of any completed Application, the ~~Letter of Credit~~ L/C Provider will notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration date of the requested Letter of Credit (which shall comply with Section ~~2.06(a~~2.07(a) and (i)) and, subject to the other conditions set forth herein and in the Series 2020-1 Supplement and upon receipt of written confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent (based, with respect to any portion of the Series ~~2021~~2020-1 Class A-1 Outstanding ~~L/C~~ Subfacility Amount held by any Person other than the ~~Series 2021-1 Class A-1~~ Administrative Agent, solely on written notices received by the ~~Series 2021-1 Class A-1~~ Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series ~~2021~~2020-1 Class A-1 Outstanding Principal Amount would not exceed the Series ~~2021~~2020-1 Class A-1 Notes Maximum Principal Amount (provided that the ~~Letter of Credit~~ L/C Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the ~~Series 2021-1 Class A-1~~ Administrative Agent for purposes of determining whether the ~~Letter of Credit~~ L/C Provider received such prior written confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent with respect to any Letter of Credit), the ~~Letter of Credit~~ L/C Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the ~~Letter of Credit~~ L/C Provider be required to provide any Letter of Credit earlier than three (3) Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section ~~2.06(a~~2.07(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the ~~Letter of Credit~~ L/C Provider and the ~~Co-Issuers~~Issuer. The ~~Letter of Credit~~ L/C Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the ~~Series 2021-1 Class A-1~~ Administrative Agent) promptly following the issuance thereof. ~~Each Letter of Credit~~ The L/C Provider shall promptly furnish to the ~~Series 2021-1 Class A-1~~ Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the ~~Indenture~~ Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (cd) The ~~Co-Issuers~~ Issuer shall pay to the ~~Letter of Credit~~ L/C Provider the L/C ~~Monthly~~ Quarterly Fees (as defined in the Series ~~2021~~2020-1 Class A-1 Notes Fee Letter, the “L/C ~~Monthly~~ Quarterly Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. In addition, the Co-Issuers shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series 20212020-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. (de) [Reserved]. (f) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (eg) The ~~Co-Issuers~~ Issuer may, upon at least three (3) Business Days’ notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~applicable Letter of Credit~~ L/C Provider, effect a permanent reduction in the ~~related~~ L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the ~~Co-Issuers~~ Issuer in writing and with the prior written consent of the ~~Letter of Credit~~ L/C Provider and the ~~Series 2021-1 Class A-1~~ Administrative Agent, the ~~Letter of Credit~~ L/C Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the Outstanding Series ~~2021~~2020-1 Class A-1 ~~Advance Notes~~ Note Advances, the Swingline Commitment and the L/C Commitment does not exceed the aggregate amount of the Commitments. (fh) ~~Each Letter of Credit~~ The L/C Provider shall satisfy its obligations under this Section ~~2.06~~ 2.07 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate as long as any such Letter of Credit issued would not be an Ineligible Interest Reserve Letter of Credit. If any such Letter of Credit would be an Ineligible Interest Reserve Letter of Credit, a Person selected by the Co-Issuers (at the reasonable expense of the Co-Issuers) shall issue such Letter of Credit; provided that any Letter of Credit issued by such Person would not be an Ineligible Interest Reserve Letter of Credit (the Letter of Credit Provider (or such Affiliate of the Letter of Credit Provider) or such other Person selected by the Co-Issuers (at the reasonable expense of the Co-Issuers), in each case in its capacity as the Co-Issuers of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). (g) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Co-Issuers in order to have any Letter of Credit issued by a Person selected by the Co-Issuers pursuant to Section 2.06(g) be a “Letter of Credit” that has been issued hereunder and such Person selected by the Co-Issuers be an “L/C Issuing Bank”. (h) Each Letter of Credit Provider and, if ~~the Letter of Credit Provider is not~~ the L/C Issuing Bank ~~for any Letter of Credit, the L/C Issuing Bank shall be under no obligation~~ Rating Test is satisfied with respect to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicablesuch Affiliate, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2021-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) Each Series 2021-1 Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.04 of the I

Appears in 1 contract

Sources: Note Purchase Agreement (Wingstop Inc.)

L/C Commitment. (a) Subject to the terms and conditions hereof, ~~each Letter of Credit~~ the L/C Provider (or its permitted ~~successors and~~ assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections ~~2.07~~ 2.08 and ~~2.08~~2.09, agrees to provide standby letters of credit, including Interest Reserve Letters of Credit ~~or other standby letters of credit requested by the Co-Issuers and agreed upon by Letter of Credit Provider in its sole discretion~~ (~~together with the Interest Reserve Letters of Credit~~ each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of ~~the~~ any Co-~~Issuers~~ Issuer or its designee on any Business Day ~~at any time until~~ during the period commencing on the Series 2017-1 Closing Date and ending on the date that is ten (10) Business Days prior to the Commitment Termination Date to be issued in accordance with Section ~~2.06(g~~2.07(h) in such form as may be approved from time to time by the ~~Letter of Credit~~ L/C Provider; provided that the ~~Letter of Credit~~ L/C Provider shall have no obligation or right to provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C ~~Commitment,~~ Commitment or (ii) the Series ~~2021~~2017-1 Class A-1 Outstanding Principal Amount would exceed the Series ~~2021~~2017-1 Class A-1 Notes Maximum Principal Amount. Notwithstanding anything herein to the contrary, if a requested Letter of Credit would cause the Series 2021-1 Class A-1 Outstanding Principal Amount attributable to a Letter of Credit Provider (in its capacity as Committed Note Purchaser and Letter of Credit Provider) to exceed its Commitment Amount (an “L/C Commitment Excess”), the Investor Groups shall effectuate a reallocation of the Series 2021-1 Class A-1 Outstanding Principal Amounts to the extent necessary so that, immediately after such requested Letter of Credit is issued, no L/C Commitment Excess would exist; provided that the Co-Issuers shall not be liable for any Breakage Amounts resulting solely from such reallocations. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $25,000 or, if less than $25,000, shall bear a reasonable administrative fee to be agreed upon by the Co-Issuers and the ~~Letter of Credit~~ L/C Provider and (~~z) expire~~ z)expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ten (10) Business Days prior to the Commitment Termination Date (the “Required Expiration Date”); provided that any Letter of Credit may provide for the automatic ~~extensions~~ renewal thereof for additional periods, each individually not to exceed one year (which shall in no event extend beyond the Required Expiration Date) unless the ~~Letter of Credit~~ L/C Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be renewed; provided further that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the Co-Issuers in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory to the ~~Letter of Credit~~ L/C Provider in its sole and absolute discretion have been made with the ~~Letter of Credit~~ L/C Provider (and, if the ~~Letter of Credit~~ L/C Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each ~~Series 2021-1~~ Interest Reserve Letter of Credit shall (1) name each of (A) the ~~Indenture~~ Trustee, for the benefit of the Senior Noteholders or the Senior Subordinated Noteholders, as applicable, and (B) the ~~beneficiary~~ Control Party, as the beneficiaries thereof; (2) allow the ~~Indenture~~ Trustee or the Control Party to submit a notice of drawing in respect of such ~~Series 2021-1~~ Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such ~~Series 2021-1~~ Interest Reserve Letter of Credit shall be paid directly into the Senior Notes Interest Reserve Account or ~~otherwise used to pay Required~~ the Senior Subordinated Notes Interest Reserve ~~Draw Amounts in accordance with Sections 5.01(c) of the Indenture~~Account, as applicable. The ~~Letter of Credit~~ L/C Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the ~~Letter of Credit~~ L/C Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (ab) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the Co-Issuers shall issue and shall cause the ~~Indenture~~ Trustee to authenticate the Series ~~2021~~2017-1 Class A-1 L/C ~~Notes~~Note, which the Co-Issuers shall deliver to the ~~Letter of Credit Providers~~ L/C Provider on the Series ~~2021~~2017-1 Closing Date~~; provided that, if such Series 2021-1 Class L/C Note is an Uncertificated Note, the Indenture Trustee shall instead register it as described in Section 2.01(a) of the Indenture~~. Such Series ~~2021~~2017-1 Class A-1 L/C Note shall be dated the Series ~~2021~~2017-1 Closing Date, shall be registered in the name of the ~~Letter of Credit~~ L/C Provider or in such other name or nominee as the ~~Letter of Credit~~ L/C Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 the Series 2017-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and ~~(unless it is an Uncertificated Note)~~ shall be duly authenticated in accordance with the provisions of the Indenture. ~~The~~ Each issuance ~~and sale~~ of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series ~~2021~~2017-1 Closing Date will constitute ~~a Borrowing~~ an Increase in the outstanding principal amount evidenced by the Series ~~2021~~2017-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of ~~Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount~~Credit. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series ~~2021~~2017-1 Class A-1 L/C Note and shall be deemed to be Series ~~2021~~2017-1 Class A-1 Outstanding Principal Amounts ~~(in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount)~~ for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for ~~the~~ purposes of accrual of interest. Subject to the terms of this ~~Agreement~~Agreement and the Series 2017-1 Supplement, each ~~drawing~~ issuance of a Letter of Credit will constitute a ~~“L/C~~ Subfacility ~~Increase”~~ Increase in the outstanding principal amount evidenced by the Series ~~2021~~2017-1 Class A-1 L/C Note and the expiration of any Letter of Credit or reimbursements of any Unreimbursed L/C Drawings thereunder or other circumstances resulting in the permanent reduction in any Undrawn L/C Face Amounts from time to time will constitute a ~~“L/C~~ Subfacility ~~Decrease”~~ Decrease in the outstanding principal amount evidenced by the Series ~~2021~~2017-1 Class A-1 L/C Note. ~~Each Letter of Credit~~ The L/C Provider and the Co-Issuers agree to promptly notify the ~~Series 2021-1 Class A-1~~ Administrative ~~Agent~~ Agents and the ~~Indenture~~ Trustee of any such decreases for which notice to the ~~Series 2021-1 Class A-1~~ Administrative ~~Agent~~ Agents is not otherwise provided hereunder. (bc) The Co-Issuers may (or shall cause the Manager on its behalf to) from time to time request that ~~any Letter of Credit~~ the L/C Provider provide a new Letter of Credit by delivering to the ~~Letter of Credit~~ L/C Provider at its address for notices specified herein an ~~application~~ Application therefor (in the form required by the applicable ~~Letter of Credit Provider or~~ L/C Issuing ~~Bank,~~ Bank as ~~applicable (an “Application”~~notified to the Co-Issuers by the L/C Provider), completed to the satisfaction of the ~~Letter of Credit~~ L/C Provider, and such other certificates, documents and other papers and information as the ~~Letter of Credit~~ L/C Provider may reasonably ~~request~~request on behalf of the L/C Issuing Bank. Upon receipt of any completed Application, the ~~Letter of Credit~~ L/C Provider will notify the ~~Series 2021-1 Class A-1~~ Administrative ~~Agent~~ Agents and the ~~Indenture~~ Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration of the requested Letter of Credit (which shall comply with Section ~~2.06(a~~2.07(a) and (i)) and, subject to the other conditions set forth herein and in the Series 2017-1 Supplement and upon receipt of written confirmation from the ~~Series 2021-1 Class A-1~~ Funding Administrative Agent (based, with respect to any portion of the Series ~~2021~~2017-1 Class A-1 Outstanding ~~L/C~~ Subfacility Amount held by any Person other than the ~~Series 2021-1 Class A-1~~ Funding Administrative Agent, solely on written notices received by the ~~Series 2021-1 Class A-1~~ Funding Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series ~~2021~~2017-1 Class A-1 Outstanding Principal Amount would not exceed the Series ~~2021~~2017-1 Class A-1 Notes Maximum Principal Amount (provided that the ~~Letter of Credit~~ L/C Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the ~~Series 2021-1 Class A-1~~ Funding Administrative Agent for purposes of determining whether the ~~Letter of Credit~~ L/C Provider received such prior written confirmation from the ~~Series 2021-1 Class A-1~~ Funding Administrative Agent with respect to any Letter of Credit), the ~~Letter of Credit~~ L/C Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the ~~Letter of Credit~~ L/C Provider be required to provide any Letter of Credit earlier than three ~~(3)~~ Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section ~~2.06(a~~2.07(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the ~~Letter of Credit~~ L/C Provider and the Co-Issuers. The ~~Letter of Credit~~ L/C Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the ~~Series 2021-1 Class A-1~~ Administrative ~~Agent~~Agents) promptly following the issuance thereof. ~~Each Letter of Credit~~ The L/C Provider shall promptly furnish to the ~~Series 2021-1 Class A-1~~ Funding Administrative Agent, which shall in turn promptly furnish to the other Administrative Agent, the Funding Agents, the Investors, the Control Party and the ~~Indenture~~ Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (cd) The Co-Issuers shall pay to the ~~Letter of Credit~~ L/C Provider the L/C ~~Monthly~~ Quarterly Fees (as defined in the Series ~~2021~~2017-1 Class A-1 Notes Fee Letter, the “L/C ~~Monthly~~ Quarterly Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. In addition, the Co-Issuers shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series 20212017-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. (de) [Intentionally omitted.] (f) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (eg) The Co-Issuers may, upon at least three (3) Business Days’ notice to the ~~Series 2021-1 Class A-1~~ Administrative ~~Agent~~ Agents and the ~~applicable Letter of Credit~~ L/C Provider, effect a permanent reduction in the ~~related~~ L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Co-Issuers in writing and with the prior written consent of the ~~Letter of Credit~~ L/C Provider and the ~~Series 2021-1 Class A-1~~ Administrative ~~Agent~~Agents, the ~~Letter of Credit~~ L/C Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the Outstanding Series ~~2021~~2017-1 Class A-1 ~~Advance Notes~~ Note Advances, the Swingline Commitment and the L/C Commitment does not exceed the aggregate amount of the Commitments. (fh) ~~Each Letter of Credit~~ The L/C Provider shall satisfy its obligations under this Section ~~2.06~~ 2.07 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate ~~as long as any~~ if the L/C Issuing Bank Rating Test is satisfied with respect to such ~~Letter~~ Affiliate and the issuance of ~~Credit issued would not be an Ineligible Interest Reserve~~ such Letter of Credit. If ~~any~~ the L/C Issuing Bank Rating Test is not satisfied with respect to such ~~Letter~~ Affiliate and the issuance of ~~Credit would be an Ineligible Interest Reserve~~ such Letter of Credit, a Person selected by the Co-Issuers (at the ~~reasonable~~ expense of the ~~Co-Issuers~~L/C Provider) shall issue such Letter of Credit; provided that ~~any~~ such Person and issuance of such Letter of Credit ~~issued by such Person would not be an Ineligible Interest Reserve Letter of Credit~~ satisfies the L/C Issuing Bank Rating Test (the ~~Letter of Credit~~ L/C Provider (or such Affiliate of the L/C Provider) in its capacity as the issuer of such Letter of Credit ~~Provider)~~ or such other Person selected by the Co-Issuers (at the ~~reasonable~~ expense of the ~~Co-Issuers), in each case in its capacity as the Co-Issuers of such Letter of Credit~~ L/C Provider) being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). . The “L/C Issuing Bank Rating Test” is a test that is satisfied with respect to a Person issuing a Letter of Credit if the Person is a U.S. commercial bank that has, at the time of the issuance of such Letter of Credit, (gi) a short-term certificate of deposit rating of not less than “A-2” (or then equivalent grade) from S&P and (ii) a long-term unsecured debt rating of not less than “BBB+” (or then equivalent grade) from S&P or such other minimum long-term unsecured debt rating as may be reasonably required by the beneficiary or beneficiaries of such proposed Letter of Credit. Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Co-Issuers in order to have any ~~Letter~~ letter of ~~Credit~~ credit issued by a Person selected by the Co-Issuers pursuant to this Section ~~2.06(g~~2.07(h) or Section 5.17 of the Base Indenture be a “Letter of Credit” that has been issued hereunder and such Person selected by the Co-Issuers be an “L/C Issuing Bank”. (h) Each Letter of Credit Provider and, if the Letter of Credit Provider is not the L/C Issuing Bank for any Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2021-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) Each Series 2021-1 Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.04 of the I

Appears in 1 contract

Sources: Class a 1 Note Purchase Agreement (Jay Merger Sub, Inc.)

L/C Commitment. Subject to the terms and conditions hereof, each Letter of Credit Provider (or its permitted successors and assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.07 and 2.08, agrees to provide ~~Interest~~ Liquidity Reserve Letters of Credit or other standby letters of credit requested by ~~the Co-Issuers~~ Issuer and agreed upon by Letter of Credit Provider in its sole discretion (together with the ~~Interest~~ Liquidity Reserve Letters of Credit each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the ~~Co-Issuers~~ Issuer or its designee on any Business Day at any time until the date that is ~~ten~~ thirty (1030) Business Days prior to the Commitment Termination Date to be issued in accordance with Section 2.06(g) in such form as may be approved from time to time by the Letter of Credit Provider; provided that the Letter of Credit Provider shall have no obligation or right to provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, or (ii) the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Outstanding Principal Amount would exceed the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Notes Maximum Principal Amount. Notwithstanding anything herein to the contrary, if a requested Letter of Credit would cause the Series 2021-1 Class A-1 Outstanding Principal Amount attributable to a Letter of Credit Provider (in its capacity as Committed Note Purchaser and Letter of Credit Provider) to exceed its Commitment Amount (an “L/C Commitment Excess”), the Investor Groups shall effectuate a reallocation of the Series 2021-1 Class A-1 Outstanding Principal Amounts to the extent necessary so that, immediately after such requested Letter of Credit is issued, no L/C Commitment Excess would exist; provided that the Co-Issuers shall not be liable for any Breakage Amounts resulting solely from such reallocations. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $~~25,000~~ 1,000,000 or, ~~if less than $25,000, shall bear~~ with the consent of the Letter of Credit Provider and a reasonable administrative fee to be agreed upon by the ~~Co-Issuers~~ Issuer and the Letter of Credit ~~Provider~~ Provider, less than $1,000,000 and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ten (10) Business Days prior to the Commitment Termination Date (the “Required Expiration Date”); provided that any Letter of Credit may provide for the automatic extensions thereof for additional periods, each individually not to exceed one year (which shall in no event extend beyond the Required Expiration Date) unless the Letter of Credit Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be ~~renewed~~extended; ~~provided further~~ provided, further, that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the ~~Co-Issuers~~ Issuer in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to ~~Interest~~ Liquidity Reserve Letters of Credit, arrangements satisfactory to the Letter of Credit Provider in its sole and absolute discretion have been made with the Letter of Credit Provider (and, if the Letter of Credit Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each Series ~~2021~~2025-1 ~~Interest~~ Liquidity Reserve Letter of Credit shall (1) name the Indenture Trustee, for the benefit of the ~~Noteholders~~Secured Parties, and the Servicer as the ~~beneficiary~~ joint beneficiaries thereof; (2) allow either the Indenture Trustee or the Servicer, individually and not jointly, to submit a notice of drawing in respect of such Series ~~2021~~2025-1 ~~Interest~~ Liquidity Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the ~~Interest~~ Liquidity Reserve Account, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such Series ~~2021~~2025-1 ~~Interest~~ Liquidity Reserve Letter of Credit shall be paid directly into the ~~Interest~~ Liquidity Reserve Account or otherwise used to pay ~~Required Interest~~ Liquidity Reserve Draw Amounts in accordance with ~~Sections~~ Section 5.01(c) of the Base Indenture. The Letter of Credit Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the Letter of Credit Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (a) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the ~~Co-Issuers~~ Issuer shall issue and shall cause the Indenture Trustee to authenticate the Series ~~2021~~2025-1 Class ~~A-1 L/C~~ A-1-▇ ▇/C Notes, which the ~~Co-Issuers~~ Issuer shall deliver to the Letter of Credit Providers on the Series ~~2021~~2025-1 Closing Date; provided that, if such Series ~~2021~~2025-1 Class L/C Note is an Uncertificated Note, the Indenture Trustee shall instead register it as described in Section 2.01(a) of the Base Indenture. Such Series ~~2021~~2025-1 Class ~~A-1 L/C~~ A-1-▇ ▇/C Note shall be dated the Series ~~2021~~2025-1 Closing Date, shall be registered in the name of the Letter of Credit Provider or in such other name or nominee as the Letter of Credit Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 and (unless it is an Uncertificated Note) shall be duly authenticated in accordance with the provisions of the Base Indenture. The issuance and sale of the Series ~~2021~~2025-1 Class ~~A-1 L/C~~ A-1-▇ ▇/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series ~~2021~~2025-1 Class ~~A-1 L/C~~ A-1-▇ ▇/C Notes shall be Variable Funding Notes that are Class ~~A-1~~ A-1-V Notes payable in accordance with the Base Indenture, the Series ~~2021~~2025-1 Supplement and this Agreement. . (b) Each drawing on a Letter of Credit after the Series ~~2021~~2025-1 Closing Date will constitute a Borrowing in the outstanding principal amount evidenced by the Series ~~2021~~2025-1 Class ~~A-1 L/C~~ A-1-▇ ▇/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of Credit and shall be deemed to be a Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Outstanding L/C Subfacility Amount. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series ~~2021~~2025-1 Class ~~A-1 L/C~~ A-1-▇ ▇/C Note and shall be deemed to be Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Outstanding Principal Amounts (in the form of Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Outstanding L/C Subfacility Amount) for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for the purposes of accrual of interest. Subject to the terms of this Agreement, each drawing of a Letter of Credit will constitute a “L/C Subfacility Increase” in the outstanding principal amount evidenced by the Series ~~2021~~2025-1 Class ~~A-1 L/C~~ A-1-▇ ▇/C Note and reimbursements of any Unreimbursed L/C Drawings thereunder will constitute a “L/C Subfacility Decrease” in the outstanding principal amount evidenced by the Series ~~2021~~2025-1 Class ~~A-1 L/C~~ A-1-▇ ▇/C Note. Each Letter of Credit Provider and the ~~Co-Issuers~~ Issuer agree to promptly notify the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Administrative Agent and the Indenture Trustee of any such decreases for which notice to the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Administrative Agent is not otherwise provided hereunder. (bc) The ~~Co-Issuers~~ Issuer may (or shall cause the Manager on its behalf to) from time to time request that any Letter of Credit Provider provide a new Letter of Credit by delivering to the Letter of Credit Provider at its address for notices specified herein an application therefor in the form required by the applicable Letter of Credit Provider or L/C Issuing Bank, as applicable (an “Application”), completed to the satisfaction of the Letter of Credit Provider, and such other certificates, documents and other papers and information as the Letter of Credit Provider may reasonably request. Upon receipt of any completed Application, the Letter of Credit Provider will notify the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Administrative ~~Agent~~ Agent, the Servicer and the Indenture Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration of the requested Letter of Credit (which shall comply with Section 2.06(a) and (i)) and, subject to the other conditions set forth herein and upon receipt of written confirmation from the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Administrative Agent (based, with respect to any portion of the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Outstanding L/C Subfacility Amount held by any Person other than the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Administrative Agent, solely on written notices received by the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Outstanding Principal Amount would not exceed the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Notes Maximum Principal Amount (provided that the Letter of Credit Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Administrative Agent for purposes of determining whether the Letter of Credit Provider received such prior written confirmation from the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Administrative Agent with respect to any Letter of Credit), the Letter of Credit Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the Letter of Credit Provider be required to provide any Letter of Credit earlier than three (3) Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section 2.06(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the Letter of Credit Provider and the ~~Co-Issuers~~Issuer. The Letter of Credit Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Administrative Agent) promptly following the issuance thereof. Each Letter of Credit Provider shall promptly furnish to the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, and the Indenture Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (cd) The ~~Co-Issuers~~ Issuer shall pay ratably to the ~~Letter of Credit Provider~~ Committed Note Purchasers, based on their respective Commitments, the L/C Monthly Fees ~~(as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Monthly Fees”)~~ in accordance with the terms of the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Notes Fee Letter and subject to the Priority of Payments. In addition, the ~~Co-Issuers~~ Issuer shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Notes Fee Letter and subject to the Priority of Payments. (de) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (ef) The ~~Co-Issuers~~ Issuer may, upon at least three (3) Business Days’ notice to the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Administrative Agent and the applicable Letter of Credit Provider, effect a permanent reduction in the related L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the ~~Co-Issuers~~ Issuer in writing and with the prior written consent of the Letter of Credit Provider and the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Administrative Agent, the Letter of Credit Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the Outstanding Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Advance Notes and the L/C Commitment does not exceed the aggregate amount of the Commitments. (fg) Each Letter of Credit Provider shall satisfy its obligations under this Section 2.06 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate as long as any such Letter of Credit issued would not be an Ineligible ~~Interest~~ Liquidity Reserve Letter of Credit. If any such Letter of Credit would be an Ineligible ~~Interest~~ Liquidity Reserve Letter of Credit, a Person selected by the ~~Co-Issuers~~ Issuer (at the reasonable expense of the ~~Co-Issuers~~Issuer) shall issue such Letter of Credit; provided that any Letter of Credit issued by such Person would not be an Ineligible ~~Interest~~ Liquidity Reserve Letter of Credit (the Letter of Credit Provider (or such Affiliate of the Letter of Credit Provider) or such other Person selected by the ~~Co-Issuers~~ Issuer (at the reasonable expense of the ~~Co-Issuers~~Issuer), in each case in its capacity as the ~~Co-Issuers~~ issuer of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). (gh) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the ~~Co-Issuers~~ Issuer in order to have any Letter of Credit issued by a Person selected by the ~~Co-Issuers~~ Issuer pursuant to Section 2.06(g) be a “Letter of Credit” that has been issued hereunder and such Person selected by the ~~Co-Issuers~~ Issuer be an “L/C Issuing Bank”. (hi) Each Letter of Credit Provider and, if the Letter of Credit Provider is not the L/C Issuing Bank for any Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular, or (iii) the issuance of such Letter of Credit would violate any policies of the Letter of Credit Provider or L/C Issuing Bank regarding Letters of Credit in general. (ij) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the ~~Co-Issuers~~ Issuer when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (jk) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts of the relevant Committed Note Purchaser and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series ~~2021~~2025-1 Class ~~A-1~~ A-1-V Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (kl) Each Series ~~2021~~2025-1 ~~Interest~~ Liquidity Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section ~~4.04~~ 4.07 of the IBase Indenture in all respects.

Appears in 1 contract

Sources: Class a 1 v Note Purchase Agreement (Shenandoah Telecommunications Co/Va/)

L/C Commitment. (a) Subject to the terms and conditions hereof, ~~each Letter of Credit~~ the L/C Provider (or its permitted ~~successors and~~ assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections ~~2.07~~ 2.08 and ~~2.08~~2.09, agrees to provide standby letters of credit, including Interest Reserve Letters of Credit ~~or other standby letters of credit requested by the Co-Issuers and agreed upon by Letter of Credit Provider in its sole discretion~~ (~~together with the Interest Reserve Letters of Credit~~ each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of either or both of the Co-Issuers ~~or its designee~~ on any Business Day ~~at any time until~~ during the period commencing on the Series 2022-1 Closing Date and ending on the date that is ten (10) Business Days prior to the Commitment Termination Date to be issued in accordance with Section ~~2.06(g~~2.07(h) in such form as may be approved from time to time by the ~~Letter of Credit~~ L/C Provider; provided that the ~~Letter of Credit~~ L/C Provider shall have no obligation or right to provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, or (ii) the Series ~~2021~~2022-1 Class A-1 Outstanding Principal Amount would exceed the Series ~~2021~~2022-1 Class A-1 Notes Maximum Principal ~~Amount. Notwithstanding anything herein to the contrary, if a requested Letter of Credit would cause~~ Amount or (iii) the Series ~~2021~~2022-1 Class A-1 Outstanding Principal Amount attributable to ~~a Letter of Credit~~ the L/C Provider (in its capacity as Committed Note Purchaser and ~~Letter of Credit~~ L/C Provider) to would exceed its Commitment Amount (an “L/C Commitment Excess”), the Investor Groups shall effectuate a reallocation of the Series 2021-1 Class A-1 Outstanding Principal Amounts to the extent necessary so that, immediately after such requested Letter of Credit is issued, no L/C Commitment Excess would exist; provided that the Co-Issuers shall not be liable for any Breakage Amounts resulting solely from such reallocationsAmount. Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $25,000 or, if less than $25,000, shall bear a reasonable administrative fee to be agreed upon by the Co-Issuers and the ~~Letter of Credit~~ L/C Provider and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ten (10) Business Days prior to the Commitment Termination Date (the “Required Expiration Date”); provided that any Letter of Credit may provide for the automatic ~~extensions~~ renewal thereof for additional periods, each individually not to exceed one year (which shall in no event extend beyond the Required Expiration Date) unless the ~~Letter of Credit~~ L/C Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be renewed; ~~provided further~~ provided, further, that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the Co-Issuers in accordance with Section ~~4.02~~ 4.02(b) or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory to the ~~Letter of Credit~~ L/C Provider in its sole and absolute discretion have been made with the ~~Letter of Credit~~ L/C Provider (and, if the ~~Letter of Credit~~ L/C Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each ~~Series 2021-1~~ Interest Reserve Letter of Credit issued hereunder shall (1) name the ~~Indenture~~ Trustee, for the benefit of the Senior Noteholders or the Senior Subordinated Noteholders, as applicable, as the beneficiary thereof; (2) allow the ~~Indenture~~ Trustee or the Control Party to submit a notice of drawing in respect of such ~~Series 2021-1~~ Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Senior Notes Interest Reserve ~~Account~~Accounts or the Senior Subordinated Notes Interest Reserve Accounts, as applicable, pursuant to the Indenture; (3) shall have an expiration date of no later than ten (10) Business Days prior to the Class A-1 Notes Renewal Date; and (3) indicate by its terms that the proceeds in respect of drawings under such ~~Series 2021-1~~ Interest Reserve Letter of Credit shall be paid directly into the applicable Senior Notes Interest Reserve Account or ~~otherwise used to pay Required~~ the applicable Senior Subordinated Notes Interest Reserve ~~Draw Amounts in accordance with Sections 5.01(c)~~ Account, as applicable, or such other Account, as permitted pursuant to the terms of the Indenture. The ~~Letter of Credit~~ L/C Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the ~~Letter of Credit~~ L/C Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) ~~each~~ the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (ab) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the Co-Issuers shall issue and shall cause the ~~Indenture~~ Trustee to authenticate the Series ~~2021~~2022-1 Class A-1 L/C ~~Notes~~Note, which the Co-Issuers shall deliver to the ~~Letter of Credit Providers~~ L/C Provider on the Series ~~2021~~2022-1 Closing Date; provided that, if such Series ~~2021~~2022-1 Class A-1 L/C Note is an Uncertificated Note, the ~~Indenture~~ Trustee shall instead register it as described in Section ~~2.01(a~~4.1(f) of the ~~Indenture~~Series Supplement. Such Series ~~2021~~2022-1 Class A-1 L/C Note shall be dated the Series ~~2021~~2022-1 Closing ~~Date~~Date (if in the form of a Definitive Note), shall be registered in the name of the ~~Letter of Credit~~ L/C Provider or in such other name or nominee as the ~~Letter of Credit~~ L/C Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 the Series 2022-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and (unless it is an Uncertificated Note) shall be duly authenticated in accordance with the provisions of the Indenture. ~~The~~ Each issuance ~~and sale~~ of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series ~~2021~~2022-1 Closing Date will constitute ~~a Borrowing~~ an Increase in the outstanding principal amount evidenced by the Series ~~2021~~2022-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of ~~Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount~~Credit. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series ~~2021~~2022-1 Class A-1 L/C Note and shall be deemed to be Series ~~2021~~2022-1 Class A-1 Outstanding Principal Amounts ~~(in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount)~~ for all purposes of this Agreement, the Indenture and the other ~~Transaction~~ Related Documents other than, in the case of Undrawn L/C Face Amounts, for ~~the~~ purposes of accrual of interest. Subject to the terms of this ~~Agreement~~Agreement and the Series 2022-1 Supplement, each ~~drawing~~ issuance of a Letter of Credit will constitute a ~~“L/C~~ Subfacility ~~Increase”~~ Increase in the outstanding principal amount evidenced by the Series ~~2021~~2022-1 Class A-1 L/C Note and the expiration of any Letter of Credit or reimbursements of any Unreimbursed L/C Drawings thereunder or other circumstances resulting in the permanent reduction in any Undrawn L/C Face Amounts from time to time will constitute a ~~“L/C~~ Subfacility ~~Decrease”~~ Decrease in the outstanding principal amount evidenced by the Series ~~2021~~2022-1 Class A-1 L/C Note. ~~Each Letter of Credit~~ The L/C Provider and the Co-Issuers agree to promptly notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee of any such decreases for which notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent is not otherwise provided hereunder. (bc) The Co-Issuers may (or shall cause the Manager on ~~its~~ their behalf to) from time to time request that ~~any Letter of Credit~~ the L/C Provider provide a new Letter of Credit by delivering to the ~~Letter of Credit~~ L/C Provider at its address for notices specified herein an ~~application~~ Application therefor (in the form required by the applicable ~~Letter of Credit Provider or~~ L/C Issuing ~~Bank,~~ Bank as ~~applicable (an “Application”~~notified to the Co-Issuers by the L/C Provider), completed to the satisfaction of the ~~Letter of Credit~~ L/C Provider, and such other certificates, documents and other papers and information as the ~~Letter of Credit~~ L/C Provider may reasonably ~~request~~request on behalf of the L/C Issuing Bank. Upon receipt of any completed Application, the ~~Letter of Credit~~ L/C Provider will notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration of the requested Letter of Credit (which shall comply with Section ~~2.06(a~~2.07(a) and (i)) and, subject to the other conditions set forth herein and in the Series 2022-1 Supplement and upon receipt of written confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent (based, with respect to any portion of the Series ~~2021~~2022-1 Class A-1 Outstanding ~~L/C~~ Subfacility Amount held by any Person other than the ~~Series 2021-1 Class A-1~~ Administrative Agent, solely on written notices received by the ~~Series 2021-1 Class A-1~~ Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series ~~2021~~2022-1 Class A-1 Outstanding Principal Amount would not exceed the Series ~~2021~~2022-1 Class A-1 Notes Maximum Principal Amount (provided that the ~~Letter of Credit~~ L/C Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the ~~Series 2021-1 Class A-1~~ Administrative Agent for purposes of determining whether the ~~Letter of Credit~~ L/C Provider received such prior written confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent with respect to any Letter of Credit), the ~~Letter of Credit~~ L/C Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the ~~Letter of Credit~~ L/C Provider be required to provide any Letter of Credit earlier than three ~~(3)~~ Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section ~~2.06(a~~2.07(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the ~~Letter of Credit~~ L/C Provider and the Co-Issuers. The ~~Letter of Credit~~ L/C Provider shall furnish a copy of such Letter of Credit to the Manager and the Co-Issuers (with a copy to the ~~Series 2021-1 Class A-1~~ Administrative Agent) promptly following the issuance thereof. ~~Each Letter of Credit~~ The L/C Provider shall promptly furnish to the ~~Series 2021-1 Class A-1~~ Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the ~~Indenture~~ Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof). (cd) The Co-Issuers shall pay to the ~~Letter of Credit~~ L/C Provider the L/C ~~Monthly~~ Quarterly Fees (as defined in the Series ~~2021~~2022-1 Class A-1 Notes Fee Letter, the “L/C ~~Monthly~~ Quarterly Fees”) in accordance with the terms of the Series 2021-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. In addition, the Co-Issuers shall pay to or reimburse the Letter of Credit Provider for its own account or for the account of the applicable L/C Issuing Bank the L/C Issuance Fees (as defined in the Series 2021-1 Class A-1 Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series 20212022-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments. (de) [Reserved]. (f) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (eg) The Co-Issuers may, upon at least three (3) Business Days’ notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~applicable Letter of Credit~~ L/C Provider, effect a permanent reduction in the ~~related~~ L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Co-Issuers in writing and with the prior written consent of the ~~Letter of Credit~~ L/C Provider and the ~~Series 2021-1 Class A-1~~ Administrative Agent, the ~~Letter of Credit~~ L/C Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the ~~Outstanding~~ Series ~~2021~~2022-1 Class A-1 ~~Advance Notes~~ Outstanding Principal Amounts, the Swingline Commitment and the L/C Commitment does not exceed the aggregate ~~amount of the Commitments~~Commitment Amounts. (fh) ~~Each Letter of Credit~~ The L/C Provider shall satisfy its obligations under this Section ~~2.06~~ 2.07 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate ~~as long as any~~ if the L/C Issuing Bank Rating Test is satisfied with respect to such ~~Letter of Credit issued would not be an Ineligible Interest Reserve Letter of Credit~~Affiliate. If ~~any~~ the L/C Issuing Bank Rating Test is not satisfied with respect to such ~~Letter of Credit would be an Ineligible Interest Reserve Letter of Credit~~Affiliate, a Person selected by the Co-Issuers (at the ~~reasonable~~ expense of the ~~Co-Issuers~~L/C Provider) shall issue such Letter of Credit; provided that ~~any~~ such Person and issuance of such Letter of Credit ~~issued by such Person would not be an Ineligible Interest Reserve Letter of Credit~~ satisfies the L/C Issuing Bank Rating Test (the ~~Letter of Credit~~ L/C Provider (or such Affiliate of the ~~Letter of Credit~~ L/C Provider) or such other Person selected by the Co-Issuers (at the ~~reasonable~~ expense of the ~~Co-Issuers~~L/C Provider), in each case in its capacity as the ~~Co-Issuers~~ issuer of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). (g) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Co-Issuers in order to have any Letter of Credit issued by a Person selected by the Co-Issuers pursuant to Section 2.06(g) be a “Letter of Credit” that has been issued hereunder and such Person selected by the Co-Issuers be an . The “L/C Issuing ~~Bank”. (h) Each~~ Bank Rating Test” is a test that is satisfied with respect to a Person issuing a Letter of Credit ~~Provider and,~~ if the ~~Letter~~ Person is a U.S. commercial bank that has, at the time of ~~Credit Provider is not~~ the ~~L/C Issuing Bank for any~~ issuance of such Letter of Credit, ~~the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if:~~ (i) ~~any order, judgment~~ a short-term certificate of deposit rating of not less than “A-2” (or ~~decree~~ then equivalent grade) from S&P and (ii) a long-term unsecured debt rating of ~~any Governmental Authority~~ not less than “BBB” (or ~~arbitrator shall~~ then equivalent grade) from S&P or such other minimum long-term unsecured debt rating as may be reasonably required by ~~its terms purport to enjoin~~ the beneficiary or ~~restrain the Letter~~ beneficiaries of ~~Credit Provider or the L/C Issuing Bank, as applicable, from issuing the~~ such proposed Letter of Credit, or (ii) any law applicable to the Letter of Credit Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series 2021-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to the definition thereof. (k) Each Series 2021-1 Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 4.04 of the I

Appears in 1 contract

Sources: Class a 1 Note Purchase Agreement (Dominos Pizza Inc)

L/C Commitment. (a) Subject to the terms and conditions hereof, ~~each Letter of Credit Provider (or its permitted successors and assigns pursuant to Section 9.17)~~the L/C Provider, in reliance on the agreements of the Committed Note Purchasers set forth in Sections ~~2.07~~ 2.08 and ~~2.08~~2.09, agrees to provide ~~Interest Reserve Letters of Credit or other~~ standby letters of credit ~~requested by the Co-Issuers and agreed upon by Letter of Credit Provider in its sole discretion~~ (~~together with the Interest Reserve Letters of Credit~~ each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Co-Issuers ~~or its designee~~ on any Business Day ~~at any time until~~ during the period commencing on the Series 2007-1 Closing Date and ending on the date that is ~~ten (10)~~ seven Business Days prior to the Commitment Termination Date to be issued in accordance with Section ~~2.06(g~~2.07(h) in such form as may be approved from time to time by the ~~Letter of Credit~~ L/C Provider; provided that the ~~Letter of Credit~~ L/C Provider shall have no obligation or right to provide any Letter of Credit ~~on a requested issuance date~~ if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C ~~Commitment,~~ Commitment or (ii) the Series ~~2021~~2007-1 Class A-1 Outstanding Principal Amount would exceed the Series ~~2021~~2007-1 Class A-1 ~~Notes~~ Maximum Principal Amount. Notwithstanding anything herein to the contrary, if a requested Letter of Credit would cause the Series 2021-1 Class A-1 Outstanding Principal Amount attributable to a Letter of Credit Provider (in its capacity as Committed Note Purchaser and Letter of Credit Provider) to exceed its Commitment Amount (an “L/C Commitment Excess”), the Investor Groups shall effectuate a reallocation of the Series 2021-1 Class A-1 Outstanding Principal Amounts to the extent necessary so that, immediately after such requested Letter of Credit is issued, no L/C Commitment Excess would exist; provided that the Co-Issuers shall not be liable for any Breakage Amounts resulting solely from such reallocations. Each Letter of Credit shall (x) be denominated in ~~Dollars~~Dollars (except to the extent provided in Section 2.07(i) with respect to any Permitted Foreign Currency Letter of Credit), (y) have a face amount of at least $~~25,000 or, if less than $25,000, shall bear a reasonable administrative fee to be~~ 100,000 (unless otherwise agreed ~~upon~~ by the ~~Co-Issuers and the Letter of Credit Provider~~ L/C Provider) and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ~~ten (10)~~ seven Business Days prior to the Commitment Termination ~~Date (the “Required Expiration~~ Date”); provided that any Letter of Credit may provide for the ~~automatic extensions~~ renewal thereof for additional ~~periods, each individually~~ periods not to exceed one year (which shall in no event extend beyond the ~~Required Expiration Date~~date referred to in clause (B) unless the Letter of Credit Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be renewed; provided further that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn above). The L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the Co-Issuers in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory to the Letter of Credit Provider in its sole and absolute discretion have been made with the Letter of Credit Provider (and, if the Letter of Credit Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date. Additionally, each Series 2021-1 Interest Reserve Letter of Credit shall (1) name the Indenture Trustee, for the benefit of the Noteholders, as the beneficiary thereof; (2) allow the Indenture Trustee to submit a notice of drawing in respect of such Series 2021-1 Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Interest Reserve Account, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such Series 2021-1 Interest Reserve Letter of Credit shall be paid directly into the Interest Reserve Account or otherwise used to pay Required Interest Reserve Draw Amounts in accordance with Sections 5.01(c) of the Indenture. The Letter of Credit Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would ~~violate~~conflict with, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the ~~Letter of Credit~~ L/C Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) ~~each~~ the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (ab) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the Co-Issuers shall issue and shall cause the ~~Indenture~~ Trustee to authenticate the initial Series ~~2021~~2007-1 Class A-1 L/C ~~Notes,~~ Note which the Co-Issuers shall deliver to the ~~Letter of Credit Providers~~ L/C Provider on the Series ~~2021~~2007-1 Closing Date~~; provided that, if such Series 2021-1 Class L/C Note is an Uncertificated Note, the Indenture Trustee shall instead register it as described in Section 2.01(a) of the Indenture~~. Such initial Series ~~2021~~2007-1 Class A-1 L/C Note shall be dated the Series ~~2021~~2007-1 Closing Date, shall be registered in the name of the ~~Letter of Credit~~ L/C Provider or its nominee, or in such other name ~~or nominee~~ as the ~~Letter of Credit~~ L/C Provider may request, shall have a maximum principal amount equal to the L/C Commitment, shall have an initial outstanding principal amount equal to $0 the Series 2007-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and ~~(unless it is an Uncertificated Note)~~ shall be duly authenticated in accordance with the provisions of the Indenture. ~~The~~ Each issuance ~~and sale~~ of the Series 2021-1 Class A-1 L/C Notes to the Letter of Credit Providers shall be subject to satisfaction of the conditions set forth in Section 7.01. The Series 2021-1 Class A-1 L/C Notes shall be Variable Funding Notes that are Class A-1 Notes payable in accordance with the Indenture, the Series 2021-1 Supplement and this Agreement. Each drawing on a Letter of Credit after the Series ~~2021~~2007-1 Closing Date will constitute a ~~Borrowing~~ Subfacility Increase in the outstanding principal amount evidenced by the Series ~~2021~~2007-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of ~~Credit and shall be deemed to be a Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount~~Credit. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series ~~2021~~2007-1 Class A-1 L/C Note ~~and shall be deemed to be Series 2021-1 Class A-1 Outstanding Principal Amounts (in the form of Series 2021-1 Class A-1 Outstanding L/C Subfacility Amount)~~ for all purposes of this Agreement, the Indenture and the other ~~Transaction~~ Related Documents other than, in the case of Undrawn L/C Face Amounts, for ~~the~~ purposes of accrual of interest. Any payment of such principal in respect of Undrawn L/C Face Amounts shall be deposited into a cash collateral account as provided in Sections 4.02 and 4.03. Subject to the terms of this ~~Agreement~~Agreement and the Series 2007-1 Supplement, ~~each drawing of a Letter of Credit will constitute a “L/C Subfacility Increase” in~~ the outstanding principal amount evidenced by the Series ~~2021~~2007-1 Class A-1 L/C Note ~~and reimbursements~~ may be increased by issuances of Letters of Credit or decreased by expirations thereof or payments of drawings thereunder or other circumstances resulting in the permanent reduction in any ~~Unreimbursed~~ Undrawn L/C ~~Drawings thereunder will constitute a “~~Face Amounts from time to time. The L/C ~~Subfacility Decrease” in the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note. Each Letter of Credit~~ Provider and the Co-Issuers agree to promptly notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee of any such decreases for which notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent is not otherwise provided hereunder. (bc) The Co-Issuers may ~~(or shall cause the Manager on its behalf to)~~ from time to time request that ~~any Letter of Credit~~ the L/C Provider provide a ~~new~~ Letter of Credit by delivering to the ~~Letter of Credit~~ L/C Provider at its address for notices specified herein an ~~application~~ Application therefor (in the form required by the applicable ~~Letter of Credit Provider or~~ L/C Issuing ~~Bank,~~ Bank as ~~applicable (an “Application”~~notified to the Co-Issuers by the L/C Provider), completed to the satisfaction of the ~~Letter of Credit~~ L/C Provider, and such other certificates, documents and other papers and information as the ~~Letter of Credit~~ L/C Provider may ~~reasonably request~~request on behalf of the L/C Issuing Bank. Upon receipt of any completed Application, the ~~Letter of Credit~~ L/C Provider will notify the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~Indenture~~ Trustee in writing of the amount, the beneficiary ~~or beneficiaries~~ and the requested expiration of the requested Letter of Credit (which shall comply with Section ~~2.06(a) and (i~~2.07(a)) and, for any Permitted Foreign Currency Letter of Credit, its Permitted L/C Dollar Cap, and subject to the other conditions set forth herein and in the Series 2007-1 Supplement and upon receipt of ~~written~~ confirmation from the ~~Series 2021-1 Class A-1~~ Administrative Agent (based, with respect to any portion of the Series ~~2021~~2007-1 Class A-1 Outstanding ~~L/C~~ Subfacility Amount held by any Person other than the ~~Series 2021-1 Class A-1~~ Administrative Agent, solely on written notices received by the ~~Series 2021-1 Class A-1~~ Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series ~~2021~~2007-1 Class A-1 Outstanding Principal Amount would not exceed the Series ~~2021~~2007-1 Class A-1 ~~Notes~~ Maximum Principal Amount (provided that the Letter of Credit Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the Series 2021-1 Class A-1 Administrative Agent for purposes of determining whether the Letter of Credit Provider received such prior written confirmation from the Series 2021-1 Class A-1 Administrative Agent with respect to any Letter of Credit)Amount, the ~~Letter of Credit~~ L/C Provider will cause such Application to be processed and the certificates, documents and other papers and information delivered in connection therewith ~~to be processed~~ in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the ~~Letter of Credit~~ L/C Provider be required to provide any Letter of Credit earlier than three ~~(3)~~ Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto~~, as provided in Section 2.06(a)~~) by issuing the original of such Letter of Credit to the beneficiary ~~or beneficiaries~~ thereof or as otherwise may be agreed to by the ~~Letter of Credit~~ L/C Provider and the Co-Issuers. The ~~Letter of Credit~~ L/C Provider shall furnish a copy of such Letter of Credit to the ~~Manager~~ Master Servicer (with a copy to the ~~Series 2021-1 Class A-1~~ Administrative Agent) promptly following the issuance thereof. ~~Each Letter of Credit~~ The L/C Provider shall promptly furnish to the ~~Series 2021-1 Class A-1~~ Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Trustee and the ~~Indenture Trustee~~Series 2007-1 Class A Insurers, written notice of the issuance of each Letter of Credit (including the amount ~~thereof~~thereof and, for any Permitted Foreign Currency Letter of Credit, its Permitted L/C Dollar Cap). (cd) The Co-Issuers shall jointly and severally pay ~~to the Letter of Credit Provider the L/C Monthly Fees~~ fees (~~as defined in the Series 2021-1 Class A-1 Notes Fee Letter,~~ the “L/C ~~Monthly~~ Quarterly Insured Fees”) with respect to each Letter of Credit at a per annum rate equal to the L/C Quarterly Insured Fees Rate calculated on the daily maximum amount then available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit if such maximum amount increases periodically pursuant to the terms of such Letter of Credit) during the applicable Interest Period, shared ratably among the Committed Note Purchasers and payable in arrears on each Quarterly Payment Date in accordance with the ~~terms~~ applicable provisions of the Indenture. In addition, under the circumstances set forth in Section 3.4 of the Series ~~2021~~2007-1 Supplement, the Co-Issuers shall jointly and severally pay contingent additional fees in respect of the outstanding Letters of Credit in an amount equal to the Series 2007-1 Class A-1 ~~Notes Fee Letter~~ Quarterly Contingent Additional L/C Fees payable pursuant to such Section 3.4 and ~~subject to~~ shared ratably among the ~~Priority of Payments.~~ Committed Note Purchasers. (e) In addition, the Co-Issuers shall jointly and severally pay to or reimburse the ~~Letter of Credit~~ L/C Provider for ~~its own account or~~ the following amounts for the account of the applicable L/C Issuing ~~Bank the L/C Issuance Fees~~ Bank: (~~as defined in the Series 2021-1 Class A-1 Notes Fee Letter,~~ i) fronting fees (the “L/C ~~Issuance~~ Fronting Fees”) with respect to each Letter of Credit issued by it at a per annum rate equal to the L/C Fronting Fees Rate calculated on the daily maximum amount then available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit if such maximum amount increases periodically pursuant to the terms of such Letter of Credit) during the applicable Interest Period, payable in arrears on each Quarterly Payment Date in accordance with the ~~terms~~ applicable provisions of the ~~Series 2021-1 Class A-1 Notes Fee~~ Indenture, and (ii) such normal and customary costs and expenses as are incurred or charged by the L/C Issuing Bank in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of Credit and ~~subject~~ separately charged to account parties (the “L/C Additional Charges”). Subject to the Priority of Payments, the L/C Additional Charges are due and payable within ten (10) Business Days of demand and are nonrefundable. (df) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply. (eg) The Co-Issuers may, upon ~~at least~~ three ~~(3)~~ Business Days’ notice to the ~~Series 2021-1 Class A-1~~ Administrative Agent and the ~~applicable Letter of Credit~~ L/C Provider, effect a permanent reduction in the ~~related~~ L/C Commitment; provided that any such reduction will be limited to the ~~undrawn~~ unused portion of the L/C Commitment. If requested by the Co-Issuers in writing and with the prior written consent of the ~~Letter of Credit Provider and the Series 2021-1 Class A-1~~ Administrative Agent, the ~~Letter of Credit~~ L/C Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided further that, after giving effect thereto, the aggregate amount of ~~each of~~ the ~~Outstanding Series 2021-1 Class A-1 Advance Notes~~ Swingline Commitment and the L/C Commitment does not exceed the aggregate amount of the Commitments. (fh) ~~Each Letter of Credit~~ The L/C Provider shall have the right to satisfy its obligations under this Section ~~2.06~~ 2.07 with respect to providing any Letter of Credit hereunder either by issuing such Letter of Credit itself or through an Affiliate as long as any such Letter of Credit issued would not be an Ineligible Interest Reserve Letter of Credit. If any such Letter of Credit would be an Ineligible Interest Reserve Letter of Credit, a by causing another Person selected by the ~~Co-Issuers (at the reasonable expense of the Co-Issuers) shall~~ L/C Provider to issue such ~~Letter of Credit; provided that any Letter of Credit issued by such Person would not be an Ineligible Interest Reserve~~ Letter of Credit (the L/C Provider in its capacity as the issuer of such Letter of Credit ~~Provider (or such Affiliate of the Letter of Credit Provider)~~ or such other Person selected by the ~~Co-Issuers (at the reasonable expense of the Co-Issuers), in each case in its capacity as the Co-Issuers of such Letter of Credit~~ L/C Provider being referred to as the “L/C Issuing Bank~~” with respect to such Letter of Credit~~”). (g) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Co-Issuers in order to have any Letter of Credit issued by a Person selected by the Co-Issuers pursuant to Section 2.06(g) be a “Letter of Credit” ; provided that ~~has been issued hereunder and such Person selected by the Co-Issuers be an “L/C Issuing Bank”. (h) Each Letter of Credit Provider and, if the Letter of Credit Provider is not~~ the L/C Issuing Bank is a U.S. commercial bank that has, at the time of such issuance, (i) a short-term certificate of deposit rating of not less than “P-1” from ▇▇▇▇▇’▇ and “A-1” from S&P and (ii) a long-term unsecured debt rating of not less than “Aa1” from ▇▇▇▇▇’▇ and “A+” from S&P. (i) No Letter of Credit shall be denominated in any currency other than Dollars unless all of the following conditions have been met (any such Letter of Credit meeting all such conditions being referred to herein as a “Permitted Foreign Currency Letter of Credit”): (i) The foreign currency in which such Letter of Credit is denominated shall be acceptable to the L/C Provider in its sole discretion; (ii) The Application for ~~any~~ such Letter of Credit shall set forth a maximum amount denominated in Dollars for such Letter of Credit (the “Permitted L/C Dollar Cap”); (iii) For purposes of determining whether the conditions to issuance set forth in Section 2.07(c)(i) or (ii) shall have been met, the Undrawn L/C Face Amount of such Letter of Credit on the date of its issuance shall be deemed to equal its Permitted L/C Dollar Cap; and (iv) By the terms of such Letter of Credit, the L/C Issuing Bank shall not be ~~under no obligation~~ obligated to ~~issue~~ make any payment of any draft thereunder in a Dollar Equivalent Amount greater than the excess, if any, of (x) the Permitted L/C Dollar Cap for such Letter of Credit ~~if:~~ over (iy) ~~any order, judgment or decree~~ the Dollar Equivalent Amount of any ~~Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain~~ other drafts previously presented thereunder. For all purposes of this Agreement and the ~~Letter~~ other Related Documents (including, without limitation, for purposes of ~~Credit Provider or~~ determining the Outstanding Principal Amount of any Series 2007-1 Class A-1 L/C ~~Issuing Bank~~Note, ~~as applicable, from issuing~~ the ~~Letter~~ amount of ~~Credit, or (ii)~~ any ~~law applicable to the Letter of Credit Provider or the~~ L/C ~~Issuing Bank, as applicable,~~ Monthly Insured Fees or ~~any request or directive (which request or directive, in the reasonable judgment of the Letter of Credit Provider or the~~ L/C ~~Issuing Bank~~Fronting Fees, ~~as applicable, has the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Provider~~ or the L/C Issuing Bank, as applicable, shall prohibit the Letter of Credit Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular. (i) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuing Bank, as applicable, and the Co-Issuers when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder. (j) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding Unreimbursed L/C Drawings as of any date of determination shall be a component of the Series ~~2021~~2007-1 Class A-1 Outstanding Principal Amount), (x) the Undrawn L/C Face Amount ~~on such date~~ of ~~determination, pursuant to the definition thereof. (k) Each Series 2021-1 Interest Reserve~~ any Permitted Foreign Currency Letter of Credit ~~(including all drawings thereunder)~~ shall be ~~subject~~ deemed to equal its Permitted L/C Dollar Cap at all times from and after the date of its issuance unless and until a draft is presented to and paid by the L/C Issuing Bank thereunder, and (y) on any date from and after the date on which any draft is presented to and paid by the L/C Issuing Bank thereunder until the Reimbursement Obligations arising from all such drafts are reimbursed in full by the Co-Issuers (through the proceeds of Advances pursuant to Section ~~4.04~~ 2.08(a) or otherwise), the Undrawn L/C Face Amount of such Letter of Credit shall be deemed to equal the excess, if any, of (A) the Permitted L/C Dollar Cap of such Letter of Credit over (B) the aggregate of the IDollar Equivalent Amounts of all drafts presented and paid under such Letter of Credit on or before such date.

Appears in 1 contract

Sources: Note Purchase Agreement (Dominos Pizza Inc)

Common use of L/C Commitment Clause in Contracts