L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender agrees to issue letters of credit (“Letters of Credit”) for the account of the Borrower on any Business Day during the Letter of Credit Availability Period in such form as may be approved from time to time by the Issuing Lender; provided that the Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, the L/C Exposure would exceed either the Total L/C Commitment or the Available Revolving Commitment at such time. Each Letter of Credit shall (i) be denominated in Dollars, or in the discretion of the Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; except that (A) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension. (b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if: (i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it; (ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally; (iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit; (iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion; (v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or (vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof. (c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit. (d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
Sources: Credit Agreement (Enernoc Inc)
L/C Commitment. (a) Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the Issuing Lender agreements of the other Lenders set forth in Section 3.4(a), agrees to issue letters of credit (“Letters of Credit”) for the account of the Borrower Company or any Borrowing Subsidiary on any Business Day during the Letter of Credit Availability Revolving Commitment Period in such form as may be approved from time to time by the such Issuing Lender; provided that the no Issuing Lender shall have no any obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the aggregate L/C Obligations would exceed the total L/C Commitment then in effect, (ii) the L/C Exposure Obligations with respect to Letters of Credit issued by such Issuing Lender would exceed either such Issuing Lender’s share of the Total total L/C Commitment Commitment, (iii) 105% of the Dollar Equivalent of the L/C Obligations attributable to Letters of Credit denominated in Alternate Currencies would exceed the L/C Alternate Currency Sublimit then in effect or (iv) the sum of (x) 105% of the Dollar Equivalent of Letters of Credit denominated in Alternate Currencies plus (y) the Dollar Equivalent of the Revolving Extensions of Credit then outstanding other than Letters of Credit denominated in Alternate Currencies would exceed the Available Revolving Commitment at such timeCommitments. Each Letter of Credit shall (i) be denominated in Dollars, Canadian Dollars, Euro or in British Pound Sterling, as the discretion of case may be, or, if agreed by the applicable Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign any Alternate Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five (5) Business Days prior to the Letter of Credit Maturity Revolving Termination Date; except , provided that (A) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-periods of up to one year periods (which shall but in no event shall any such renewal extend beyond the date referred to in clause (y) immediately above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The No Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) if such issuance would conflict with, or cause the such Issuing Lender or any L/C Lender Participant to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
Sources: Credit Agreement (First Solar, Inc.)
L/C Commitment. (a) Subject to the terms and conditions hereof, the Applicable Issuing Lender Party, in reliance on the agreements of the other Lenders set forth in Sections 3.4(a) and 3.8(b), agrees to issue letters of credit (“Letters of Credit”) for the account of the Borrower Borrowers on any Business Day during the Letter Commitment Period (i) in the case of Credit Availability Period Fronted Letters of Credit, in such form as may be approved from time to time by such Issuing Lender and (ii) in the Issuing Lendercase of Several Letters of Credit, substantially in the form of Exhibit L; provided that the such Applicable Issuing Lender Party shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, the L/C Exposure would exceed either the Total L/C Commitment or aggregate amount of the Available Revolving Commitments would be less than zero and, provided, further, that, if any Issuing Lender shall issue any Fronted Letter of Credit that results in the aggregate amount of the Available Commitments being less than zero without having received prior written confirmation from the Administrative Agent that the issuance of such Fronted Letter of Credit would not result in the aggregate amount of the Available Commitments being less than zero, the provisions of Section 3.4 shall be applicable to such Fronted Letter of Credit only to the extent of the portion thereof (the “Participated Portion”) that, if such Fronted Letter of Credit had been issued in an amount equal to the Participated Portion, would not have resulted in the aggregate amount of the Available Commitment at being less than zero and the portion of such timeFronted Letter of Credit (and any related Reimbursement Obligations) that does not constitute the Participated Portion shall be subject and subordinate in right of payment and as to priority of the security provided by the Collateral to all other Obligations. Each Letter of Credit shall (i) be denominated in Dollars, Dollars or in the discretion of the Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; Pounds Sterling and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five (5) Business Days prior to the Letter of Credit Maturity Termination Date; except provided that (A) any Letter of Credit with a one-year term may provide for the renewal thereof at the option of the applicable Borrower for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) subject ), so long as the Issuing Lender of such Letter of Credit has the right to refuse to extend such Letter of Credit if at the Borrower’s satisfaction time of such refusal the applicable Borrower would be unable to satisfy the conditions set forth in Section 5.2 at the time of 5.3; provided further that any such renewal and (B) a Secured Letter of Credit may expire on a have an expiration date that is up to 365 364 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Termination Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The No Applicable Issuing Lender Party shall not at any time be obligated to issue (i) any Letter of Credit if:
(i) if such issuance would conflict with, or cause the such Applicable Issuing Lender or Party, any L/C Participant or any Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, Law or (ii) any order, judgment or decree Secured Letter of Credit on behalf of any Governmental Authority Borrower if (x) the then Borrowing Base of such Borrower would be less than such Borrower’s aggregate Secured L/C Obligations after giving effect to the issuance of such Secured Letter of Credit or arbitrator shall by its terms purport (y) all cash and Eligible Securities constituting such Borrowing Base are not then held in an Account of such Borrower established pursuant to enjoin or restrain Section 1 of Article II of the Issuing Lender from applicable Collateral Account Control Agreement. Prior to issuing the any Secured Letter of Credit, or any law applicable to the Applicable Issuing Lender or any request or directive (whether or not having Party shall obtain confirmation from the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request Administrative Agent that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
requirements imposed by clause (ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time preceding sentence shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such timesatisfied.
Appears in 1 contract
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender L/C Provider (or its permitted assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.08 and 2.09, agrees to issue provide standby letters of credit credit, including Interest Reserve Letters of Credit (each, a “Letter of Credit” and, collectively, the “Letters of Credit”) ), for the account of the Borrower Master Issuer or its designee on any Business Day during the Letter of Credit Availability Period 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 2.07(h) in such form as may be approved from time to time by the Issuing LenderL/C Provider; provided that the Issuing Lender L/C Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment or Commitment, or, (ii) the Available Revolving Commitment at such timeSeries 2022-1 Class A-1 Outstanding Principal Amount would exceed the Series 2022-1 Class A-1 Notes Maximum Principal Amount. Each Letter of Credit shall (ix) be denominated in Dollars, or in the discretion (y) have a face amount of the Issuing Lenderat least $25,000 or, a Foreign Currency; provided that if less than $25,000 (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported unless otherwise agreed by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C Provider), shall bear a reasonable administrative fee to be agreed upon by the Master Issuer and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent L/C Provider and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiz) expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five ten (510) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except provided that (A) any Letter of Credit with a one-year term may provide for the automatic renewal thereof for additional one-year periods periods, each individually not to exceed twelve (12) months (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, unless the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in Provider notifies each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least thirty (30) calendar days prior to an expiry the then-applicable expiration date not (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 five later than the Required Expiration Date so long as either (5x) Business Days prior the Undrawn L/C Face Amount with respect to the such Letter of Credit Maturity Date; providedhas been fully cash collateralized by the Master 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, however, that arrangements satisfactory to the L/C Issuer Provider in its sole and absolute discretion have been made with the L/C Provider (and, if the 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. The L/C Provider shall not permit at any time be obligated to (I) provide any Letter of Credit hereunder if such extension 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 (A1) the L/C Issuer has determined that it would not be permitted, or Provider would have no obligation, obligation at such time to issue such Letter of Credit in its revised amended form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B2) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more each beneficiary of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of does not accept the stated amount thereof after any drawing thereunder; or
(vi) subject proposed amendment to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(db) Unless otherwise specified hereinOn 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 Master Issuer shall issue and shall cause the Trustee to authenticate the Series 2022-1 Class A-1 L/C Notes, which the Master Issuer shall deliver to the L/C Provider on the Series 2022-1 Closing Date; provided that, if such Series 2022-1 Class A-1 L/C Note is an Uncertificated Note, the Trustee shall instead register it as described in Section 4.1(e) of the Series 2022-1 Supplement. Such Series 2022-1 Class A-1 L/C Note shall be dated the Series 2022-1 Closing Date, shall be registered in the name of the L/C Provider or in such other name or nominee as the 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 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. Each issuance of a Letter of Credit at any time after the Series 2022-1 Closing Date will constitute an Increase in the outstanding principal amount evidenced by the Series 2022-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of 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 Dollar Equivalent Series 2022-1 Class A-1 L/C Note and shall be deemed to be Series 2022-1 Class A-1 Outstanding Principal Amounts for all purposes of stated amount this Agreement, the Indenture and the other Related Documents other than, in the case of such Undrawn L/C Face Amounts, for purposes of accrual of interest. Subject to the terms of this Agreement and the Series 2022-1 Supplement, each issuance of a Letter of Credit will constitute a Subfacility Increase in the outstanding principal amount evidenced by the Series 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 Subfacility Decrease in the outstanding principal amount evidenced by the Series 2022-1 Class A-1 L/C Note. The L/C Provider and the Master Issuer agree to promptly notify the Administrative Agent and the Trustee of any such decreases for which notice to the Administrative Agent is not otherwise provided hereunder.
(c) The Master Issuer may (or shall cause the Manager on its behalf to) from time to time request that the L/C Provider provide a new Letter of Credit by delivering to the L/C Provider at its address for notices specified herein an application therefor (in the form required by the applicable L/C Issuing Bank as notified to the Master Issuer by the L/C Provider) (an “Application”), completed to the satisfaction of the 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. Upon receipt of any completed Application, the L/C Provider will notify the Administrative Agent and the 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 2.07(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 Administrative Agent (based, with respect to any portion of the Series 2022-1 Class A-1 Outstanding Subfacility Amount held by any Person other than the Administrative Agent, solely on written notices received by the Administrative Agent under this Agreement) that after giving effect at to the requested issuance, the Series 2022-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2022-1 Class A-1 Notes Maximum Principal Amount (provided that the 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 Administrative Agent for purposes of determining whether the L/C Provider received such time; provided, however, that prior written confirmation from the Administrative Agent with respect to any Letter of Credit), the 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 thatrequested thereby (but in no event shall the L/C Provider be required to provide any Letter of Credit earlier than three Business Days after its receipt of the Application therefor and all such other certificates, by its terms or the terms of any Issuer Document related documents and other papers and information relating thereto, provides for one or more automatic increases as provided in Section 2.07(a)) by issuing the stated amount thereof, the amount original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the L/C Provider and the Master Issuer. The L/C Provider shall be deemed to be the maximum Dollar Equivalent of the stated amount furnish a copy of such Letter of Credit to the Manager (with a copy to the Administrative Agent) promptly following the issuance thereof. The L/C Provider shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof).
(d) The Master Issuer shall pay to the L/C Provider the L/C Quarterly Fees (as defined in the Series 2022-1 Class A-1 VFN Fee Letter, the “L/C Quarterly Fees”) in accordance with the terms of the Series 2022-1 Class A-1 VFN Fee Letter and subject to the Priority of Payments.
(e) [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.
(g) The Master Issuer may, upon at least three (3) Business Days’ notice to the Administrative Agent and the L/C Provider, effect a permanent reduction in the L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Master Issuer in writing and with the prior written consent of the L/C Provider and the Administrative Agent, the 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 2022-1 Class A-1 Note Advances and the L/C Commitment does not exceed the aggregate amount of the Commitments.
(h) The L/C Provider shall satisfy its obligations under this Section 2.07 with respect to all providing any Letter of Credit hereunder by issuing such increasesLetter of Credit itself or through an Affiliate if the L/C Issuing Bank Rating Test is satisfied with respect to such Affiliate, whether and the issuance of such Letter of Credit. If the L/C Issuing Bank Rating Test is not satisfied with respect to such Affiliate, and the issuance of such Letter of Credit, a Person selected by the Master Issuer (at the expense of the L/C Provider) shall issue such Letter of Credit; provided that such Person and issuance of such Letter of Credit satisfies the L/C Issuing Bank Rating Test (the L/C Provider (or such Affiliate of the L/C Provider) or such other Person selected by the Master Issuer (at the expense of the L/C Provider), in each case in its capacity as the 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, (i) 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 maximum stated amount is 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 Master Issuer in effect at order to have any letter of credit issued by a Person selected by the Master Issuer pursuant to this Section 2.07(h) or Section 5.19 of the Base Indenture be a “Letter of Credit” that has been issued hereunder and such timePerson selected by the Master Issuer be an “L/C Issuing Bank”. If any Letter of Credit issued by an L/C Provider hereunder in favor of an insurance or other similar provider to any Non-Securitization Entity or Securitization Entity no longer satisfies such provider’s criteria for an eligible or otherwise conforming letter of credit for its particular purpose, the Master 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 satisfies the L/C Issuing Bank Rating Test, and such L/C Provider shall reasonably cooperate with the Master Issuer in connection with the termination and replacement of such Letter of Credit.
Appears in 1 contract
Sources: Note Purchase Agreement (European Wax Center, Inc.)
L/C Commitment. (a) Prior to the Closing Date, the Existing Issuing Lender has issued the Existing Letters of Credit under the Existing Credit Agreement, which, from and after the Closing Date, shall constitute Letters of Credit hereunder. Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the Issuing Lender agreements of the other LC/Swing Line Revolving Lenders set forth in Section 4.4(a), agrees to issue letters of credit (the letters of credit issued on and after the Closing Date pursuant to this Section 4, the “Letters of Credit”) for the account of the Borrower on any Business Day during the Letter of Credit Availability Revolving Facility Commitment Period in such form as may be approved from time to time by the such Issuing Lender; provided provided, that the no Issuing Lender shall have no any obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the outstanding L/C Obligations would exceed the L/C Exposure would exceed either Commitment, (ii) the Total sum of (x) the L/C Obligations plus (y) the aggregate principal amount of Swing Line Loans outstanding at any time, plus (z) the aggregate amount of LC/Swing Line Revolving Loans then outstanding would exceed the LC/Swing Line Revolving Commitment or (iii) the Available sum of (x) the L/C Obligations, plus (y) the aggregate principal amount of Swing Line Loans outstanding at any time plus (z) the aggregate amount of Revolving Commitment at such timeCredit Loans then outstanding would exceed the Total Revolving Credit Commitment. Each Letter of Credit shall (i) be denominated in Dollars, or in the discretion of the Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; Dollars and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that which is five (5) Business Days prior to the Letter of Credit Maturity Revolving Facility Termination Date; except , provided that (A) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
Sources: First Lien Credit Agreement (Six Flags Entertainment Corp)
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender L/C Provider (or its permitted assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.08 and 2.09, agrees to issue provide standby letters of credit credit, including Interest Reserve Letters of Credit (each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Borrower Co-Issuers on any Business Day during the Letter of Credit Availability Period period commencing on the Series 2019-1 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 2.07(h) in such form as may be approved from time to time by the Issuing LenderL/C Provider; provided that the Issuing Lender L/C Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment or (ii) the Available Revolving Commitment at such timeSeries 2019-1 Class A-1 Outstanding Principal Amount would exceed the Series 2019-1 Class A-1 Maximum Principal Amount. Each Letter of Credit shall (ix) be denominated in Dollars, or in the discretion (y) have a face amount of the Issuing Lenderat least $25,000 or, if less than $25,000, shall bear a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall reasonable administrative fee to be reported agreed upon by the Issuing Bank to Co-Issuers and the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent Provider and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiz) expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five ten (510) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except provided that (A) any Letter of Credit with a one-year term may provide for the automatic renewal thereof for additional one-periods, each individually not to exceed one year periods (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, unless the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to Provider notifies the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least 30 calendar days prior to an expiry the then-applicable expiration date not (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 five later than the Required Expiration Date so long as either (5x) Business Days prior the Undrawn L/C Face Amount with respect to the such Letter of Credit Maturity Date; providedhas been fully cash collateralized by the Co-Issuers in accordance with Section 4.02(b) or 4.03 as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, however, that arrangements satisfactory to the L/C Issuer Provider in its sole and absolute discretion have been made with the L/C Provider (and, if the 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 Interest Reserve Letter of Credit shall (1) name the Trustee, for the benefit of the Senior Noteholders or the Senior Subordinated Noteholders, as applicable, as the beneficiary thereof; (2) allow the Trustee or the Control Party on its behalf to submit a notice of drawing in respect of such 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 Interest Reserve Letter of Credit shall be paid directly into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable. The L/C Provider shall not permit at any time be obligated to (I) provide any Letter of Credit hereunder if such extension 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 (A1) the L/C Issuer has determined that it would not be permitted, or Provider would have no obligation, obligation at such time to issue such Letter of Credit in its revised amended form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii2) the issuance beneficiary of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of does not accept the stated amount thereof after any drawing thereunder; or
(vi) subject proposed amendment to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(db) Unless otherwise specified hereinOn 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 Trustee to authenticate the initial Series 2019-1 Class A-1 L/C Note, which the Co-Issuers shall deliver to the L/C Provider on the Series 2019-1 Closing Date; provided that, if such Series 2019-1 Class A-1 L/C Note is an Uncertificated Note, the Trustee shall instead register it as described in Section 4.01(f) of the Series 2019-1 Supplement. Such initial Series 2019-1 Class A-1 L/C Note shall be dated the Series 2019-1 Closing Date, shall be registered in the name of the L/C Provider or in such other name or nominee as the 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 the Series 2019-1 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. Each issuance of a Letter of Credit at any time after the Series 2019-1 Closing Date will constitute an Increase in the outstanding principal amount evidenced by the Series 2019-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of 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 Dollar Equivalent Series 2019-1 Class A-1 L/C Note and shall be deemed to be Series 2019-1 Class A-1 Outstanding Principal Amounts for all purposes of stated this Agreement, the Indenture and the other Related Documents other than, in the case of Undrawn L/C Face Amounts, for purposes of accrual of interest. Subject to the terms of this Agreement and the Series 2019-1 Supplement, the outstanding principal amount evidenced by the Series 2019-1 Class A-1 L/C Note 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 Undrawn L/C Face Amounts from time to time. The L/C Provider and the Co-Issuers agree to promptly notify the Administrative Agent and the Trustee of any such decreases for which notice to the Administrative Agent is not otherwise provided hereunder.
(c) The Co-Issuers may (or shall cause the Manager on their behalf to) from time to time request that the L/C Provider provide a new Letter of Credit by delivering to the L/C Provider at its address for notices specified herein an Application therefor (in the form required by the applicable L/C Issuing Bank as notified to the Co-Issuers by the L/C Provider), completed to the satisfaction of the L/C Provider, and such other certificates, documents and other papers and information as the 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 hereunder as of the Series 2019-1 Closing Date. Upon receipt of any completed Application, the L/C Provider will notify the Administrative Agent and the Trustee in writing of the amount, the beneficiary and the requested expiration of the requested Letter of Credit (which shall comply with Sections 2.07(a) and (i)) and, subject to the other conditions set forth herein and in the Series 2019-1 Supplement and upon receipt of written confirmation from the Administrative Agent (based, with respect to any portion of the Series 2019-1 Class A-1 Outstanding Subfacility Amount held by any Person other than the Administrative Agent, solely on written notices received by the Administrative Agent under this Agreement) that after giving effect at to the requested issuance, the Series 2019-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2019-1 Class A-1 Maximum Principal Amount (provided that the 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 Administrative Agent for purposes of determining whether the L/C Provider received such time; provided, however, that prior written confirmation from the Administrative Agent with respect to any Letter of Credit), the 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 thatrequested thereby (but in no event shall the 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, by its terms or the terms of any Issuer Document related documents and other papers and information relating thereto, provides for one or more automatic increases as provided in Section 2.07(a)) by issuing the stated amount thereof, the amount original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by the L/C Provider and the Co-Issuers. The L/C Provider shall be deemed to be the maximum Dollar Equivalent of the stated amount furnish a copy of such Letter of Credit to the Manager (with a copy to the Administrative Agent) promptly following the issuance thereof. The L/C Provider shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof).
(d) The Co-Issuers shall jointly and severally pay ratably to the Committed Note Purchasers the L/C Quarterly Fees (as defined in the Series 2019-1 Class A-1 VFN Fee Letter, the “L/C Quarterly Fees”) in accordance with the terms of the Series 2019-1 Class A-1 VFN Fee Letter and subject to the Priority of Payments.
(e) In addition, the Co-Issuers shall jointly and severally pay to or reimburse the L/C Provider for the account of the applicable L/C Issuing Bank the L/C Fronting Fees, if any, in accordance with the terms of the Series 2019-1 Class A-1 VFN Fee Letter and subject to the Priority of Payments.
(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.
(g) The Co-Issuers may, upon three (3) Business Days’ notice to the Administrative Agent and the L/C Provider, effect a reduction in the 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 L/C Provider and the Administrative Agent, the 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 the Swingline Commitment and the L/C Commitment does not exceed the aggregate Commitment Amount.
(h) The L/C Provider shall satisfy its obligations under this Section 2.07 with respect to all providing any Letter of Credit hereunder by issuing such increasesLetter of Credit itself or through an Affiliate, whether so long as the L/C Issuing Bank Rating Test is satisfied with respect to such Affiliate and the issuance of such Letter of Credit. If the L/C Issuing Bank Rating Test is not satisfied with respect to such Affiliate and the issuance of such Letter of Credit, the L/C Provider or a Person selected by (at the expense of the L/C Provider) the Co-Issuers shall issue such Letter of Credit; provided that such Person and issuance of such Letter of Credit satisfies the L/C Issuing Bank Rating Test (the L/C Provider (or such Affiliate of the L/C Provider) in its capacity as the issuer of such Letter of Credit or such other Person selected by the Co-Issuers 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, (i) 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 “BBB” from S&P or such maximum stated amount is in effect at other minimum long-term unsecured debt rating as may be reasonably required by the beneficiary of such timeproposed Letter of Credit.
Appears in 1 contract
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender L/C Provider (or its permitted assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.08 and 2.09, agrees to issue provide standby letters of credit credit, including Interest Reserve Letters of Credit (each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Borrower Co-Issuers on any Business Day during the Letter of Credit Availability Period period commencing on the Series 2021-1 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 2.07(h) in such form as may be approved from time to time by the Issuing LenderL/C Provider; provided that the Issuing Lender L/C Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment or (ii) the Available Revolving Commitment at such timeSeries 2021-1 Class A-1 Outstanding Principal Amount would exceed the Series 2021-1 Class A-1 Maximum Principal Amount. Each Letter of Credit shall (ix) be denominated in Dollars, or in the discretion (y) have a face amount of the Issuing Lenderat least $25,000 or, if less than $25,000, shall bear a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall reasonable administrative fee to be reported agreed upon by the Issuing Bank to Co-Issuers and the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent Provider and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiz) expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five (5) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except provided that (A) any Letter of Credit with a one-year term may provide for the automatic renewal thereof for additional one-periods, each individually not to exceed one year periods (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, unless the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to Provider notifies the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least 30 calendar days prior to an expiry the then-applicable expiration date not (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 five later than the Required Expiration Date so long as either (5x) Business Days prior the Undrawn L/C Face Amount with respect to the such Letter of Credit Maturity Date; providedhas been fully cash collateralized by the Co-Issuers in accordance with Section 4.02(b) or 4.03 as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, however, that arrangements satisfactory to the L/C Issuer Provider in its sole and absolute discretion have been made with the L/C Provider (and, if the 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 Interest Reserve Letter of Credit shall (1) name the Trustee, for the benefit of the Senior Noteholders or the Senior Subordinated Noteholders, as applicable, as the beneficiary thereof; (2) allow the Trustee or the Control Party on its behalf to submit a notice of drawing in respect of such 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 Interest Reserve Letter of Credit shall be paid directly into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable. The L/C Provider shall not permit at any time be obligated to (I) provide any Letter of Credit hereunder if such extension 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 (A1) the L/C Issuer has determined that it would not be permitted, or Provider would have no obligation, obligation at such time to issue such Letter of Credit in its revised amended form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii2) the issuance beneficiary of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of does not accept the stated amount thereof after any drawing thereunder; or
(vi) subject proposed amendment to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Credit. Unless otherwise expressly agreed by the L/C Issuer Provider and the Borrower Co-Issuers when a Letter of Credit is issued (including any such agreement and subject to applicable laws, the Letters of Credit shall be governed by and subject to an Existing Letter of Credit), (i) ISP or the rules of the ISP shall apply to each standby Uniform Customs and Practice for Documentary Credits, as published in its most recent version by the International Chamber of Commerce on the date any Letter of CreditCredit is issued.
(b) 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 Trustee to authenticate the initial Series 2021-1 Class A-1 L/C Note, which the Co-Issuers shall deliver to the L/C Provider on the Series 2021-1 Closing Date; provided that, if such Series 2021-1 Class A-1 L/C Note is an Uncertificated Note, the Trustee shall instead register it as described in Section 4.01(f) of the Series 2021-1 Supplement. Such initial 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 L/C Provider or in such other name or nominee as the 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 the Series 2021-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and (iiunless it is an Uncertificated Note) shall be duly authenticated in accordance with the rules provisions of UCP 600 at the time of Indenture. Each issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time after the Series 2021-1 Closing Date will constitute an Increase 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. 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 Dollar Equivalent Series 2021-1 Class A-1 L/C Note and shall be deemed to be Series 2021-1 Class A-1 Outstanding Principal Amounts for all purposes of stated this Agreement, the Indenture and the other Related Documents other than, in the case of Undrawn L/C Face Amounts, for purposes of accrual of interest. Subject to the terms of this Agreement and the Series 2021-1 Supplement, the outstanding principal amount evidenced by the Series 2021-1 Class A-1 L/C Note 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 Undrawn L/C Face Amounts from time to time. The L/C Provider and the Co-Issuers agree to promptly notify the Administrative Agent and the Trustee of any such decreases for which notice to the Administrative Agent is not otherwise provided hereunder.
(c) The Co-Issuers may (or shall cause the Manager on their behalf to) from time to time request that the L/C Provider provide a new Letter of Credit by delivering to the L/C Provider at its address for notices specified herein an Application therefor (in the form required by the applicable L/C Issuing Bank as notified to the Co-Issuers by the L/C Provider), completed to the satisfaction of the L/C Provider, and such other certificates, documents and other papers and information as the 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 hereunder as of the Series 2021-1 Closing Date. Upon receipt of any completed Application, the L/C Provider will notify the Administrative Agent and the Trustee in writing of the amount, the beneficiary and the requested expiration of the requested Letter of Credit (which shall comply with Sections 2.07(a) and (i)) and, subject to the other conditions set forth herein and in the Series 2021-1 Supplement and upon receipt of written confirmation from the Administrative Agent (based, with respect to any portion of the Series 2021-1 Class A-1 Outstanding Subfacility Amount held by any Person other than the Administrative Agent, solely on written notices received by the Administrative Agent under this Agreement) that after giving effect at to the requested issuance, the Series 2021-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2021-1 Class A-1 Maximum Principal Amount (provided that the 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 Administrative Agent for purposes of determining whether the L/C Provider received such time; provided, however, that prior written confirmation from the Administrative Agent with respect to any Letter of Credit), the 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 thatrequested thereby (but in no event shall the 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, by its terms or the terms of any Issuer Document related documents and other papers and information relating thereto, provides for one or more automatic increases as provided in Section 2.07(a)) by issuing the stated amount thereof, the amount original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by the L/C Provider and the Co-Issuers. The L/C Provider shall be deemed to be the maximum Dollar Equivalent of the stated amount furnish a copy of such Letter of Credit to the Manager (with a copy to the Administrative Agent) promptly following the issuance thereof. The L/C Provider shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof).
(d) The Co-Issuers shall jointly and severally pay ratably to the Committed Note Purchasers the L/C Quarterly Fees (as defined in the Series 2021-1 Class A-1 VFN Fee Letter, the “L/C Quarterly Fees”) in accordance with the terms of the Series 2021-1 Class A-1 VFN Fee Letter and subject to the Priority of Payments.
(e) In addition, the Co-Issuers shall jointly and severally pay to or reimburse the L/C Provider for the account of the applicable L/C Issuing Bank the L/C Fronting Fees, if any, in accordance with the terms of the Series 2021-1 Class A-1 VFN Fee Letter and subject to the Priority of Payments.
(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.
(g) The Co-Issuers may, upon three (3) Business Days’ notice to the Administrative Agent and the L/C Provider, effect a reduction in the 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 L/C Provider and the Administrative Agent, the 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 the Swingline Commitment and the L/C Commitment does not exceed the aggregate Commitment Amount.
(h) The L/C Provider shall satisfy its obligations under this Section 2.07 with respect to all providing any Letter of Credit hereunder by issuing such increasesLetter of Credit itself or through an Affiliate, whether so long as the L/C Issuing Bank Rating Test is satisfied with respect to such Affiliate and the issuance of such Letter of Credit. If the L/C Issuing Bank Rating Test is not satisfied with respect to such Affiliate and the issuance of such Letter of Credit, the L/C Provider or not such maximum stated amount is in effect at such time.a Person
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, the Issuing Lender agrees L/C Provider (or its permitted assigns pursuant to issue Section 9.17), in reliance on the agreements of the Note Purchasers set forth in Sections 2.08 and 2.09, 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 credit, including Interest Reserve Letters of Credit (each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Borrower Issuer or its designee on any Business Day during the Letter of Credit Availability Period period commencing on the Series 2022-1 Closing Date and ending on the date that is thirty (30) Business Days prior to the Commitment Termination Date to be issued in accordance with Section 2.07(h) in such form as may be approved from time to time by the Issuing LenderL/C Provider; provided that the Issuing Lender L/C Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment or (ii) the Available Revolving Commitment at such timeSeries 2022-1 Class A-1 Outstanding Principal Amount would exceed the Series 2022-1 Class A-1 Notes Maximum Principal Amount. Each Letter of Credit shall (ix) be denominated in Dollars, or in the discretion (y) have a face amount of the Issuing Lenderat least $1 million or, if less than $1 million, shall bear a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall reasonable administrative fee to be reported agreed upon by the Issuing Bank to Issuer and the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent Provider and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiz) expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five ten (510) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except provided that (A) any Letter of Credit with a one-year term may provide for the automatic renewal thereof for additional one-periods, each individually not to exceed one year periods (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, unless the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in Provider notifies each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least thirty (30) calendar days prior to an expiry the then-applicable expiration date not (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 five later than the Required Expiration Date so long as either (5x) Business Days prior the Undrawn L/C Face Amount with respect to the such Letter of Credit Maturity Date; providedhas been fully cash collateralized by the 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, however, that arrangements satisfactory to the L/C Issuer Provider in its sole and absolute discretion have been made with the L/C Provider (and, if the 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. The L/C Provider shall not permit at any time be obligated to (I) provide any Letter of Credit hereunder if such extension 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 (A1) the L/C Issuer has determined that it would not be permitted, or Provider would have no obligation, obligation at such time to issue such Letter of Credit in its revised amended form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B2) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more each beneficiary of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of does not accept the stated amount thereof after any drawing thereunder; or
(vi) subject proposed amendment to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(db) Unless otherwise specified hereinOn 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 Issuer issued and caused the Trustee to authenticate the Series 2022-1 Class A-1 L/C Note, which the Issuer delivered to the L/C Provider on the Series 2022-1 Closing Date; provided that, if such Series 2022-1 Class A-1 L/C Note is an Uncertificated Note, the Trustee instead registered it as described in Section 4.1(f) of the Series 2022-1 Supplement. Such Series 2022-1 Class A-1 L/C Note is dated the Series 2022-1 Closing Date, is registered in the name of the L/C Provider or in such other name or nominee as the L/C Provider requested, has a maximum principal amount equal to the L/C Commitment, had an initial outstanding principal amount equal to the Series 2022-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and (unless it is an Uncertificated Note) was duly authenticated in accordance with the provisions of the Indenture. Each issuance of a Letter of Credit at any time after the Series 2022-1 Closing Date will constitute an Increase in the outstanding principal amount evidenced by the Series 2022-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of 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 Dollar Equivalent Series 2022-1 Class A-1 L/C Note and shall be deemed to be Series 2022-1 Class A-1 Outstanding Principal Amounts for all purposes of stated amount this Agreement, the Indenture and the other Transaction Documents other than, in the case of such Undrawn L/C Face Amounts, for purposes of accrual of interest. Subject to the terms of this Agreement and the Series 2022-1 Supplement, each issuance of a Letter of Credit will constitute a Subfacility Increase in the outstanding principal amount evidenced by the Series 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 Subfacility Decrease in the outstanding principal amount evidenced by the Series 2022-1 Class A-1 L/C Note. The L/C Provider and the Issuer agree to promptly notify the Administrative Agent and the Trustee of any such decreases for which notice to the Administrative Agent is not otherwise provided hereunder.
(c) The Issuer may (or shall cause the Manager on its behalf to) from time to time request that the L/C Provider provide a new Letter of Credit by delivering to the L/C Provider at its address for notices specified herein an application therefor (in the form required by the applicable L/C Issuing Bank as notified to the Issuer by the L/C Provider) (an “Application”), completed to the satisfaction of the 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. Upon receipt of any completed Application, the L/C Provider will notify the Administrative Agent and the 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 2.07(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 Administrative Agent (based, with respect to any portion of the Series 2022-1 Class A-1 Outstanding Subfacility Amount held by any Person other than the Administrative Agent, solely on written notices received by the Administrative Agent under this Agreement) that after giving effect at to the requested issuance, the Series 2022-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2022-1 Class A-1 Notes Maximum Principal Amount (provided that the 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 Administrative Agent for purposes of determining whether the L/C Provider received such time; provided, however, that prior written confirmation from the Administrative Agent with respect to any Letter of Credit), the 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 thatrequested thereby (but in no event shall the 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, by its terms or the terms of any Issuer Document related documents and other papers and information relating thereto, provides for one or more automatic increases as provided in Section 2.07(a)) by issuing the stated amount thereof, the amount original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the L/C Provider and the Issuer. The L/C Provider shall be deemed to be the maximum Dollar Equivalent of the stated amount furnish a copy of such Letter of Credit to the Manager (with a copy to the Administrative Agent) promptly following the issuance thereof. The L/C Provider shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof).
(d) The Issuer shall pay to the L/C Provider the L/C Quarterly Fees (as defined in the Series 2022-1 Class A-1 Notes Fee Letter, the “L/C Quarterly Fees”) in accordance with the terms of the Series 2022-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments.
(e) [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.
(g) The Issuer may, upon at least three (3) Business Days’ notice to the Administrative Agent and the L/C Provider, effect a permanent reduction in the L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Issuer in writing and with the prior written consent of the L/C Provider and the Administrative Agent, the 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 2022-1 Class A-1 Note Advances and the L/C Commitment does not exceed the aggregate amount of the Commitments.
(h) The L/C Provider shall satisfy its obligations under this Section 2.07 with respect to all providing any Letter of Credit hereunder by issuing such increasesLetter of Credit itself or through an Affiliate if the L/C Issuing Bank Rating Test is satisfied with respect to such Affiliate, whether and the issuance of such Letter of Credit. If the L/C Issuing Bank Rating Test is not satisfied with respect to such Affiliate, and the issuance of such Letter of Credit, a Person selected by the Issuer (at the expense of the L/C Provider) shall issue such Letter of Credit; provided that such Person and issuance of such Letter of Credit satisfies the L/C Issuing Bank Rating Test (the L/C Provider (or such Affiliate of the L/C Provider) or such other Person selected by the Issuer (at the expense of the L/C Provider), in each case in its capacity as the 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, (i) 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 maximum stated amount is 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 Issuer in effect at order to have any letter of credit issued by a Person selected by the Issuer pursuant to this Section 2.07(h) or Section 5.17 of the Base Indenture be a “Letter of Credit” that has been issued hereunder and such timePerson selected by the Issuer be an “L/C Issuing Bank”. If any Letter of Credit issued by an L/C Provider 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, 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 satisfies the L/C Issuing Bank 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.
Appears in 1 contract
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender L/C Provider (or its permitted assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.08 and 2.09, agrees to issue provide standby letters of credit credit, including Interest Reserve Letters of Credit (each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Borrower Co-Issuers on any Business Day during the Letter of Credit Availability Period 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 2.07(h) in such form as may be approved from time to time by the Issuing LenderL/C Provider; provided that the Issuing Lender L/C Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment or (ii) the Available Revolving Commitment at such timeSeries 2017-1 Class A-1 Outstanding Principal Amount would exceed the Series 2017-1 Class A-1 Maximum Principal Amount. Each Letter of Credit shall (ix) be denominated in Dollars, or in the discretion (y) have a face amount of the Issuing Lenderat least $25,000 or, if less than $25,000, shall bear a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall reasonable administrative fee to be reported agreed upon by the Issuing Bank to Co-Issuers and the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent Provider and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiz) expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five ten (510) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except provided that (A) any Letter of Credit with a one-year term may provide for the automatic renewal thereof for additional one-periods, each individually not to exceed one year periods (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, unless the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to Provider notifies the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least 30 calendar days prior to an expiry the then-applicable expiration date not (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 five later than the Required Expiration Date so long as either (5x) Business Days prior the Undrawn L/C Face Amount with respect to the such Letter of Credit Maturity Date; providedhas been fully cash collateralized by the Co-Issuers in accordance with Section 4.02(b) or 4.03 as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, however, that arrangements satisfactory to the L/C Issuer Provider in its sole and absolute discretion have been made with the L/C Provider (and, if the 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 Interest Reserve Letter of Credit shall (1) name the Trustee, for the benefit of the Senior Noteholders or the Senior Subordinated Noteholders, as applicable, as the beneficiary thereof; (2) allow the Trustee or the Control Party on its behalf to submit a notice of drawing in respect of such 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 Interest Reserve Letter of Credit shall be paid directly into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable. The L/C Provider shall not permit at any time be obligated to (I) provide any Letter of Credit hereunder if such extension 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 (A1) the L/C Issuer has determined that it would not be permitted, or Provider would have no obligation, obligation at such time to issue such Letter of Credit in its revised amended form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii2) the issuance beneficiary of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of does not accept the stated amount thereof after any drawing thereunder; or
(vi) subject proposed amendment to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(db) Unless otherwise specified hereinOn 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 Trustee to authenticate the initial Series 2017-1 Class A-1 L/C Note, which the Co-Issuers shall deliver to the L/C Provider on the Series 2017-1 Closing Date. Such initial Series 2017-1 Class A-1 L/C Note shall be dated the Series 2017-1 Closing Date, shall be registered in the name of the L/C Provider or in such other name or nominee as the 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 the Series 2017-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and shall be duly authenticated in accordance with the provisions of the Indenture. Each issuance of a Letter of Credit at any time after the Series 2017-1 Closing Date will constitute an Increase in the outstanding principal amount evidenced by the Series 2017-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of 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 Dollar Equivalent Series 2017-1 Class A-1 L/C Note and shall be deemed to be Series 2017-1 Class A-1 Outstanding Principal Amounts for all purposes of stated this Agreement, the Indenture and the other Related Documents other than, in the case of Undrawn L/C Face Amounts, for purposes of accrual of interest. Subject to the terms of this Agreement and the Series 2017-1 Supplement, the outstanding principal amount evidenced by the Series 2017-1 Class A-1 L/C Note 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 Undrawn L/C Face Amounts from time to time. The L/C Provider and the Co-Issuers agree to promptly notify the Administrative Agent and the Trustee of any such decreases for which notice to the Administrative Agent is not otherwise provided hereunder.
(c) The Co-Issuers may (or shall cause the Manager on their behalf to) from time to time request that the L/C Provider provide a new Letter of Credit by delivering to the L/C Provider at its address for notices specified herein an Application therefor (in the form required by the applicable L/C Issuing Bank as notified to the Co-Issuers by the L/C Provider), completed to the satisfaction of the L/C Provider, and such other certificates, documents and other papers and information as the 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 hereunder as of the Series 2017-1 Closing Date. Upon receipt of any completed Application, the L/C Provider will notify the Administrative Agent and the Trustee in writing of the amount, the beneficiary and the requested expiration of the requested Letter of Credit (which shall comply with Sections 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 Administrative Agent (based, with respect to any portion of the Series 2017-1 Class A-1 Outstanding Subfacility Amount held by any Person other than the Administrative Agent, solely on written notices received by the Administrative Agent under this Agreement) that after giving effect at to the requested issuance, the Series 2017-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2017-1 Class A-1 Maximum Principal Amount (provided that the 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 Administrative Agent for purposes of determining whether the L/C Provider received such time; provided, however, that prior written confirmation from the Administrative Agent with respect to any Letter of Credit), the 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 thatrequested thereby (but in no event shall the 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, by its terms or the terms of any Issuer Document related documents and other papers and information relating thereto, provides for one or more automatic increases as provided in Section 2.07(a)) by issuing the stated amount thereof, the amount original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by the L/C Provider and the Co-Issuers. The L/C Provider shall be deemed to be the maximum Dollar Equivalent of the stated amount furnish a copy of such Letter of Credit to the Manager (with a copy to the Administrative Agent) promptly following the issuance thereof. The L/C Provider shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof).
(d) The Co-Issuers shall jointly and severally pay ratably to the Committed Note Purchasers the L/C Quarterly Fees (as defined in the Series 2017-1 Class A1 VFN Fee Letter, the “L/C Quarterly Fees”) in accordance with the terms of the Series 20171 Class A-1 VFN Fee Letter and subject to the Priority of Payments.
(e) In addition, the Co-Issuers shall jointly and severally pay to or reimburse the L/C Provider for the account of the applicable L/C Issuing Bank the L/C Fronting Fees, if any, in accordance with the terms of the Series 2017-1 Class A-1 VFN Fee Letter and subject to the Priority of Payments.
(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.
(g) The Co-Issuers may, upon three (3) Business Days’ notice to the Administrative Agent and the L/C Provider, effect a reduction in the 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 L/C Provider and the Administrative Agent, the 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 the Swingline Commitment and the L/C Commitment does not exceed the aggregate Commitment Amount.
(h) The L/C Provider shall satisfy its obligations under this Section 2.07 with respect to all providing any Letter of Credit hereunder by issuing such increasesLetter of Credit itself or through an Affiliate, whether so long as the L/C Issuing Bank Rating Test is satisfied with respect to such Affiliate and the issuance of such Letter of Credit. If the L/C Issuing Bank Rating Test is not satisfied with respect to such Affiliate and the issuance of such Letter of Credit, the L/C Provider or a Person selected by (at the expense of the L/C Provider) the Co-Issuers shall issue such Letter of Credit; provided that such Person and issuance of such Letter of Credit satisfies the L/C Issuing Bank Rating Test (the L/C Provider (or such Affiliate of the L/C Provider) in its capacity as the issuer of such Letter of Credit or such other Person selected by the Co-Issuers 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, (i) 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 “BBB” from S&P or such maximum stated amount is in effect at other minimum long-term unsecured debt rating as may be reasonably required by the beneficiary of such timeproposed Letter of Credit.
Appears in 1 contract
L/C Commitment. (a) Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the Issuing Lender agreements of the other Lenders set forth in Section 5.4, agrees to issue letters of credit (“Letters each a "Letter of Credit”") for the account of the Borrower on any Business Day during from the Letter of Credit Availability Period Closing Date until the date that is ten Business Days prior to the Maturity Date in such form as may be approved from time to time by the such Issuing Lender; provided that the no Issuing Lender shall have no any obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment, (ii) the aggregate amount of the Utilized Commitments would be greater than the Loan Commitments or (iii) unless the applicable Issuing Lender shall otherwise consent thereto, the aggregate amount of all outstanding Letters of Credit issued by (A) Bank One or Barclays, each as Issuing Lender, would exceed 50% of the L/C Commitment or (B) SunTrust, as Issuing Lender, would exceed 33% of the Available Revolving Commitment at such timeL/C Commitment. Each Letter of Credit shall (ix) be denominated in Dollars, or in the discretion (y) have a face amount of the Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent at least $1,000,000 (unless the Administrative Agent is otherwise agreed by the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiz) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the issuance; provided, that, if one or more Letters of Credit shall at any time have an expiry date that is five (5) Business Days prior to later than the Letter of Credit Maturity Date; except that (A) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to shall, not later than (i) five days preceding the Issuing Lender Maturity Date, deposit in a cash collateral in account opened by the Administrative Agent an amount equal to 105% of the Dollar Equivalent of the face aggregate then undrawn and unexpired amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter Letters of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests Borrower's senior unsecured long-term, non-credit enhanced debt rating in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension effect is at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) BBB- as published by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon S&P and is at the time such Letter of Credit is issued. Unless otherwise directed least Baa3 as published by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇'▇ or (ii) fifteen days preceding the Maturity Date, deposit in a cash collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit if the Borrower's senior unsecured long-term, non-credit enhanced debt rating in effect is lower than BBB- as published by S&P or is lower than Baa3 as published by ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed ▇'▇. Amounts held in such cash collateral account shall be held and applied by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, manner and for the purposes set forth in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a10.2(c), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Consolidated Natural Gas Co/Va)
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender L/C Provider (or its permitted assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.08 and 2.09, agrees to issue provide standby letters of credit credit, including Interest Reserve Letters of Credit (each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Borrower any Co-Issuer or its designee on any Business Day during the Letter of Credit Availability Period 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 2.07(h) in such form as may be approved from time to time by the Issuing LenderL/C Provider; provided that the Issuing Lender L/C Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment Commitment, or (ii) the Available Revolving Commitment at such timeSeries 2018-1 Class A-1 Outstanding Principal Amount would exceed the Series 2018-1 Class A-1 Notes Maximum Principal Amount. Each Letter of Credit shall (ix) be denominated in Dollars, or in the discretion (y) have a face amount of the Issuing Lenderat least $25,000 or, if less than $25,000, shall bear a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall reasonable administrative fee to be reported agreed upon by the Issuing Bank to Co-Issuers and the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent Provider and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiz) expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five ten (510) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except provided that (A) any Letter of Credit with a one-year term may provide for the automatic renewal thereof for additional one-periods, each individually not to exceed one year periods (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, unless the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in Provider notifies each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least thirty (30) calendar days prior to an expiry the then-applicable expiration date not (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 five later than the Required Expiration Date so long as either (5x) Business Days prior the Undrawn L/C Face Amount with respect to the such Letter of Credit Maturity Date; providedhas 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, however, that arrangements satisfactory to the L/C Issuer Provider in its sole and absolute discretion have been made with the L/C Provider (and, if the 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. The L/C Provider shall not permit at any time be obligated to (I) provide any Letter of Credit hereunder if such extension 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 (A1) the L/C Issuer has determined that it would not be permitted, or Provider would have no obligation, obligation at such time to issue such Letter of Credit in its revised amended form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B2) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more each beneficiary of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of does not accept the stated amount thereof after any drawing thereunder; or
(vi) subject proposed amendment to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(db) Unless otherwise specified hereinOn 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 Trustee to authenticate the Series 2018-1 Class A-1 L/C Note, which the Co-Issuers shall deliver to the L/C Provider on the Series 2018-1 Closing Date. Such Series 2018-1 Class A-1 L/C Note shall be dated the Series 2018-1 Closing Date, shall be registered in the name of the L/C Provider or in such other name or nominee as the 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 the Series 2018-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and shall be duly authenticated in accordance with the provisions of the Indenture. Each issuance of a Letter of Credit at any time after the Series 2018-1 Closing Date will constitute an Increase in the outstanding principal amount evidenced by the Series 2018-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of 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 Dollar Equivalent Series 2018-1 Class A-1 L/C Note and shall be deemed to be Series 2018-1 Class A-1 Outstanding Principal Amounts for all purposes of stated amount this Agreement, the Indenture and the other Related Documents other than, in the case of such Undrawn L/C Face Amounts, for purposes of accrual of interest. Subject to the terms of this Agreement and the Series 2018-1 Supplement, each issuance of a Letter of Credit will constitute a Subfacility Increase in the outstanding principal amount evidenced by the Series 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 Subfacility Decrease in the outstanding principal amount evidenced by the Series 2018-1 Class A-1 L/C Note. The L/C Provider and the Co-Issuers agree to promptly notify the Administrative Agent and the Trustee of any such decreases for which notice to the Administrative Agent is not otherwise provided hereunder.
(c) The Co-Issuers may (or shall cause the Manager on its behalf to) from time to time request that the L/C Provider provide a new Letter of Credit by delivering to the L/C Provider at its address for notices specified herein an application therefor (in the form required by the applicable L/C Issuing Bank as notified to the Co-Issuers by the L/C Provider) (an “Application”), completed to the satisfaction of the 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. Upon receipt of any completed Application, the L/C Provider will notify the Administrative Agent and the 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 2.07(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 Administrative Agent (based, with respect to any portion of the Series 2018-1 Class A-1 Outstanding Subfacility Amount held by any Person other than the Administrative Agent, solely on written notices received by the Administrative Agent under this Agreement) that after giving effect at to the requested issuance, the Series 2018-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2018-1 Class A-1 Notes Maximum Principal Amount (provided that the 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 Administrative Agent for purposes of determining whether the L/C Provider received such time; provided, however, that prior written confirmation from the Administrative Agent with respect to any Letter of Credit), the 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 thatrequested thereby (but in no event shall the L/C Provider be required to provide any Letter of Credit earlier than three Business Days after its receipt of the Application therefor and all such other certificates, by its terms or the terms of any Issuer Document related documents and other papers and information relating thereto, provides for one or more automatic increases as provided in Section 2.07(a)) by issuing the stated amount thereof, the amount original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the L/C Provider and the Co-Issuers. The L/C Provider shall be deemed to be the maximum Dollar Equivalent of the stated amount furnish a copy of such Letter of Credit to the Manager (with a copy to the Administrative Agent) promptly following the issuance thereof. The L/C Provider shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof).
(d) The Co-Issuers shall pay to the L/C Provider the L/C Quarterly Fees (as defined in the Series 2018-1 Class A-1 VFN Fee Letter, the “L/C Quarterly Fees”) in accordance with the terms of the Series 2018-1 Class A-1 VFN Fee Letter and subject to the Priority of Payments.
(e) [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.
(g) The Co-Issuers may, upon at least three (3) Business Days’ notice to the Administrative Agent and the L/C Provider, effect a permanent reduction in the 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 L/C Provider and the Administrative Agent, the 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 2018-1 Class A-1 Note Advances, the Swingline Commitment and the L/C Commitment does not exceed the aggregate amount of the Commitments.
(h) The L/C Provider shall satisfy its obligations under this Section 2.07 with respect to all providing any Letter of Credit hereunder by issuing such increasesLetter of Credit itself or through an Affiliate if the L/C Issuing Bank Rating Test is satisfied with respect to such Affiliate, whether and the issuance of such Letter of Credit. If the L/C Issuing Bank Rating Test is not satisfied with respect to such Affiliate, and the issuance of such Letter of Credit, a Person selected by the Co-Issuers (at the expense of the Co-Issuers) shall issue such Letter of Credit; provided that such Person and issuance of such Letter of Credit satisfies the L/C Issuing Bank Rating Test (the L/C Provider (or such Affiliate of the L/C Provider) or such other Person selected by the Co-Issuers (at the expense of the Co-Issuers), in each case in its capacity as the 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, (i) 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 maximum stated amount is 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 effect at order to have any letter of credit issued by a Person selected by the Co-Issuers pursuant to this Section 2.07(h) or Section 5.17 of the Base Indenture be a “Letter of Credit” that has been issued hereunder and such timePerson selected by the Co-Issuers be an “L/C Issuing Bank”.
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, the Issuing Lender L/C Provider (or its permitted assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.08 and 2.09, agrees to issue provide standby letters of credit credit, including Interest Reserve Letters of Credit (each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Borrower Master Issuer or its designee on any Business Day during the Letter of Credit Availability Period period commencing on the 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 2.07(h) in such form as may be approved from time to time by the Issuing LenderL/C Provider; provided that the Issuing Lender L/C Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment or (ii) the Available Revolving Commitment at such timeSeries 2018-1 Class A-1 Outstanding Principal Amount would exceed the Series 2018-1 Class A-1 Notes Maximum Principal Amount. Each Letter of Credit shall (ix) be denominated in Dollars, or in the discretion (y) have a face amount of the Issuing Lenderat least $25,000 or, if less than $25,000, shall bear a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall reasonable administrative fee to be reported agreed upon by the Issuing Bank to Master Issuer and the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent Provider and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiz) expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five ten (510) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except provided that (A) any Letter of Credit with a one-year term may provide for the automatic renewal thereof for additional one-periods, each individually not to exceed one year periods (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, unless the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to Provider notifies the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least 30 calendar days prior to an expiry the then-applicable expiration date not (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 five later than the Required Expiration Date so long as (5x) Business Days prior the Undrawn L/C Face Amount with respect to the such Letter of Credit Maturity Date; provided, however, that has been fully cash collateralized by the Master Issuer in accordance with Section 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 and (y) such arrangement is satisfactory to the L/C Issuer Provider in its sole and absolute discretion. Additionally, each Interest Reserve Letter of Credit shall (1) name each of (A) the 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 Trustee or the Control Party to submit a notice of drawing in respect of such 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 Interest Reserve Letter of Credit shall be paid directly into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable. The L/C Provider shall not permit at any time be obligated to (I) provide any Letter of Credit hereunder if such extension 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 (A1) the L/C Issuer has determined that it would not be permitted, or Provider would have no obligation, obligation at such time to issue such Letter of Credit in its revised amended form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii2) the issuance beneficiary of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of does not accept the stated amount thereof after any drawing thereunder; or
(vi) subject proposed amendment to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(db) Unless otherwise specified hereinOn 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 Master Issuer shall issue and shall cause the Trustee to authenticate the Series 2018-1 Class A-1 L/C Note, which the Master Issuer shall deliver to the L/C Provider on the Closing Date. Such Series 2018-1 Class A-1 L/C Note shall be dated the Closing Date, shall be registered in the name of the L/C Provider or in such other name or nominee as the 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 the Series 2018-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and shall be duly authenticated in accordance with the provisions of the Indenture. Each issuance of a Letter of Credit at any time after the Closing Date will constitute an Increase in the outstanding principal amount evidenced by the Series 2018-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of 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 Dollar Equivalent Series 2018-1 Class A-1 L/C Note and shall be deemed to be Series 2018-1 Class A-1 Outstanding Principal Amounts for all purposes of stated this Agreement, the Indenture and the other Related Documents other than, in the case of Undrawn L/C Face Amounts, for purposes of accrual of interest. Subject to the terms of this Agreement and the Series 2018-1 Supplement, the outstanding principal amount evidenced by the Series 2018-1 Class A-1 L/C Note 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 Undrawn L/C Face Amounts from time to time. The L/C Provider and the Master Issuer agree to promptly notify the Administrative Agent and the Trustee of any such decreases for which notice to the Administrative Agent is not otherwise provided hereunder.
(c) The Master Issuer may (or shall cause the Manager on its behalf to) from time to time request that the L/C Provider provide a new Letter of Credit by delivering to the L/C Provider at its address for notices specified herein an Application therefor (in the form required by the applicable L/C Issuing Bank as notified to the Master Issuer by the L/C Provider), completed to the satisfaction of the 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. Upon receipt of any completed Application, the L/C Provider will notify the Administrative Agent and the Trustee in writing of the amount, the beneficiary and the requested expiration of the requested Letter of Credit (which shall comply with Sections 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 Administrative Agent (based, with respect to any portion of the Series 2018-1 Class A-1 Outstanding Subfacility Amount held by any Person other than the Administrative Agent, solely on written notices received by the Administrative Agent under this Agreement) that after giving effect at to the requested issuance, the Series 2018-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2018-1 Class A-1 Notes Maximum Principal Amount (provided that the 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 Administrative Agent for purposes of determining whether the L/C Provider received such time; provided, however, that prior written confirmation from the Administrative Agent with respect to any Letter of Credit), the 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 thatrequested thereby (but in no event shall the 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, by its terms or the terms of any Issuer Document related documents and other papers and information relating thereto, provides for one or more automatic increases as provided in Section 2.07(a)) by issuing the stated amount thereof, the amount original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by the L/C Provider and the Master Issuer. The L/C Provider shall be deemed to be the maximum Dollar Equivalent of the stated amount furnish a copy of such Letter of Credit to the Manager (with a copy to the Administrative Agent) promptly following the issuance thereof. The L/C Provider shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof).
(d) The Master Issuer shall pay ratably to the Committed Note Purchasers the L/C Quarterly Fees (as defined in the Series 2018-1 Class A-1 VFN Fee Letter, the “L/C Quarterly Fees”) in accordance with the terms of the Series 2018-1 Class A-1 VFN Fee Letter and subject to the Priority of Payments.
(e) 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.
(f) The Master Issuer may, upon three (3) Business Days’ notice to the Administrative Agent and the L/C Provider, effect a permanent reduction in the L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Master Issuer in writing and with the prior written consent of the L/C Provider and the Administrative Agent, the 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 2018-1 Class A-1 Note Advances, the Swingline Commitment and the L/C Commitment does not exceed the aggregate Commitment Amounts.
(g) The L/C Provider shall satisfy its obligations under this Section 2.07 with respect to all providing any Letter of Credit hereunder by issuing such increasesLetter of Credit itself or through an Affiliate, whether so long as the L/C Issuing Bank Rating Test is satisfied with respect to such Affiliate and the issuance of such Letter of Credit. If the L/C Issuing Bank Rating Test is not satisfied with respect to such Affiliate and the issuance of such Letter of Credit, the L/C Provider or not a Person selected by (at the expense of the L/C Provider) the Master Issuer shall issue such maximum stated amount is in effect at Letter of Credit; provided that such time.Person and issuance of such Letter of Credit satisfies the L/C Issuing Bank Rating Test (the L/C Provider (or such Affiliate of
Appears in 1 contract
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender L/C Provider (or its permitted assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.08 and 2.09, agrees to issue provide standby letters of credit credit, including 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 Borrower IssuerCo-Issuers on any Business Day during the Letter of Credit Availability Period period commencing on the Series 2019-3 Closing Date and ending on the date that is ten Business Days prior to the Commitment Termination Date to be issued in accordance with Section 2.07(h) in such form as may be approved from time to time by the Issuing LenderL/C Provider; provided that the Issuing Lender L/C Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment, (ii) the Series 2019-3 Class A-1 Outstanding Principal Amount would exceed the Series 2019-3 Class A-1 Notes Maximum Principal Amount or (iii) the Series 2019-3 Class A-1 Outstanding Principal Amount attributable to the L/C Provider (in its capacity as Committed Note Purchaser and L/C Provider) would exceed its Commitment or the Available Revolving Commitment at such timeAmount. Each Letter of Credit shall (ix) be denominated in Dollars, or in the discretion (y) have a face amount of the Issuing Lender, a Foreign Currency; provided that at least $100,000 (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported unless otherwise agreed by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7Provider, together with a reasonable administrative fee to be agreed upon) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiz) expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five ten (510) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except provided that (A) any Letter of Credit with a one-year term may provide for the automatic renewal thereof for additional one-periods, each individually not to exceed one year periods (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, unless the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in Provider notifies each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least thirty (30) calendar days prior to an expiry the then-applicable expiration date not (or no later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; providedapplicable notice date, howeverif earlier, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue as specified in such Letter of Credit in its revised form (as extendedCredit) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall not be deemed 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 be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect has been fully cash collateralized by the IssuerCo-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 all such increasesLetter of Credit as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, whether arrangements satisfactory to the L/C Provider in its sole and absolute discretion have been made with the L/C Provider (and, if the 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 not such maximum stated amount is in effect at such timeto be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date.
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, the Issuing Lender L/C Provider (or its permitted assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.08 and 2.09, agrees to issue provide standby letters of credit credit, including Interest Reserve Letters of Credit (each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Borrower Master Issuer or its designee on any Business Day during the Letter of Credit Availability Period period commencing on the 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 2.07(h) in such form as may be approved from time to time by the Issuing LenderL/C Provider; provided that the Issuing Lender L/C Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment or (ii) the Available Revolving Commitment at such timeSeries 2022-1 Class A-1 Outstanding Principal Amount would exceed the Series 2022-1 Class A-1 Notes Maximum Principal Amount. Each Letter of Credit shall (ix) be denominated in Dollars, or in the discretion (y) have a face amount of the Issuing Lenderat least $25,000 or, if less than $25,000, shall bear a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall reasonable administrative fee to be reported agreed upon by the Issuing Bank to Master Issuer and the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent Provider and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiz) expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five ten (510) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except provided that (A) any Letter of Credit with a one-year term may provide for the automatic renewal thereof for additional one-periods, each individually not to exceed one year periods (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, unless the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to Provider notifies the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least 30 calendar days prior to an expiry the then-applicable expiration date not (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 five later than the Required Expiration Date so long as (5x) Business Days prior the Undrawn L/C Face Amount with respect to the such Letter of Credit Maturity Date; provided, however, that has been fully cash collateralized by the Master Issuer in accordance with Section 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 and (y) such arrangement is satisfactory to the L/C Issuer Provider in its sole and absolute discretion. Additionally, each Interest Reserve Letter of Credit shall (1) name each of (A) the 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 Trustee or the Control Party to submit a notice of drawing in respect of such 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 Interest Reserve Letter of Credit shall be paid directly into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable. The L/C Provider shall not permit at any time be obligated to (I) provide any Letter of Credit hereunder if such extension 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 (A1) the L/C Issuer has determined that it would not be permitted, or Provider would have no obligation, obligation at such time to issue such Letter of Credit in its revised amended form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii2) the issuance beneficiary of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of does not accept the stated amount thereof after any drawing thereunder; or
(vi) subject proposed amendment to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(db) Unless otherwise specified hereinOn 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 Master Issuer shall issue and shall cause the Trustee to authenticate the Series 2022-1 Class A-1 L/C Note, which the Master Issuer shall deliver to the L/C Provider on the Closing Date. Such Series 2022-1 Class A-1 L/C Note shall be dated the Closing Date, shall be registered in the name of the L/C Provider or in such other name or nominee as the 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 the Series 2022-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and shall be duly authenticated in accordance with the provisions of the Indenture. Each issuance of a Letter of Credit at any time after the Closing Date will constitute an Increase in the outstanding principal amount evidenced by the Series 2022-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of 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 Dollar Equivalent Series 2022-1 Class A-1 L/C Note and shall be deemed to be Series 2022-1 Class A-1 Outstanding Principal Amounts for all purposes of stated this Agreement, the Indenture and the other Related Documents other than, in the case of Undrawn L/C Face Amounts, for purposes of accrual of interest. Subject to the terms of this Agreement and the Series 2022-1 Supplement, the outstanding principal amount evidenced by the Series 2022-1 Class A-1 L/C Note 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 Undrawn L/C Face Amounts from time to time. The L/C Provider and the Master Issuer agree to promptly notify the Administrative Agent and the Trustee of any such decreases for which notice to the Administrative Agent is not otherwise provided hereunder.
(c) The Master Issuer may (or shall cause the Manager on its behalf to) from time to time request that the L/C Provider provide a new Letter of Credit by delivering to the L/C Provider at its address for notices specified herein an Application therefor (in the form required by the applicable L/C Issuing Bank as notified to the Master Issuer by the L/C Provider), completed to the satisfaction of the 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. Upon receipt of any completed Application, the L/C Provider will notify the Administrative Agent and the Trustee in writing of the amount, the beneficiary and the requested expiration of the requested Letter of Credit (which shall comply with Sections 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 Administrative Agent (based, with respect to any portion of the Series 2022-1 Class A-1 Outstanding Subfacility Amount held by any Person other than the Administrative Agent, solely on written notices received by the Administrative Agent under this Agreement) that after giving effect at to the requested issuance, the Series 2022-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2022-1 Class A-1 Notes Maximum Principal Amount (provided that the 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 Administrative Agent for purposes of determining whether the L/C Provider received such time; provided, however, that prior written confirmation from the Administrative Agent with respect to any Letter of Credit), the 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 thatrequested thereby (but in no event shall the 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, by its terms or the terms of any Issuer Document related documents and other papers and information relating thereto, provides for one or more automatic increases as provided in Section 2.07(a)) by issuing the stated amount thereof, the amount original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by the L/C Provider and the Master Issuer. The L/C Provider shall be deemed to be the maximum Dollar Equivalent of the stated amount furnish a copy of such Letter of Credit to the Manager (with a copy to the Administrative Agent) promptly following the issuance thereof. The L/C Provider shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof).
(d) The Master Issuer shall pay ratably to the Committed Note Purchasers the L/C Quarterly Fees (as defined in the Series 2022-1 Class A-1 VFN Fee Letter, the “L/C Quarterly Fees”) in accordance with the terms of the Series 2022-1 Class A-1 VFN Fee Letter and subject to the Priority of Payments.
(e) 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.
(f) The Master Issuer may, upon three (3) Business Days’ notice to the Administrative Agent and the L/C Provider, effect a permanent reduction in the L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Master Issuer in writing and with the prior written consent of the L/C Provider and the Administrative Agent, the 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 2022-1 Class A-1 Note Advances, the Swingline Commitment and the L/C Commitment does not exceed the aggregate Commitment Amounts.
(g) The L/C Provider shall satisfy its obligations under this Section 2.07 with respect to all providing any Letter of Credit hereunder by issuing such increasesLetter of Credit itself or through an Affiliate, whether so long as the L/C Issuing Bank Rating Test is satisfied with respect to such Affiliate and the issuance of such Letter of Credit. If the L/C Issuing Bank Rating Test is not satisfied with respect to such Affiliate and the issuance of such Letter of Credit, the L/C Provider or a Person selected by (at the expense of the L/C Provider) the Master Issuer shall issue such Letter of Credit; provided that such Person and issuance of such Letter of Credit satisfies the L/C Issuing Bank Rating Test (the L/C Provider (or such Affiliate of the L/C Provider) in its capacity as the issuer of such Letter of Credit or such other Person selected by the Master Issuer 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, (i) a short-term certificate of deposit rating of not less than “P-2” from ▇▇▇▇▇’▇ and “A-2” from S&P and, if it has a rating by KBRA, KBRA, and (ii) a long-term unsecured debt rating of not less than “Baa2” from ▇▇▇▇▇’▇ or “BBB” from S&P and, if it has a rating by KBRA, KBRA; provided that for purposes of this L/C Issuing Bank Rating Test, an L/C Provider will be deemed to have the short-term debt credit rating or the long-term debit credit rating, as applicable, of such maximum stated amount is in effect at L/C Provider or any guarantor (or confirming bank) of such timeL/C Provider.
Appears in 1 contract
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender agrees to issue letters of credit (“Letters of Credit”) for the account of the Borrower on any Business Day during the Letter of Credit Availability Period in such form as may be approved from time to time by the Issuing Lender; provided that the Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, the L/C Exposure would exceed either the Total L/C Commitment or the Available Revolving Commitment at such time. Each Letter of Credit shall (i) be denominated in Dollars, or in the discretion of the Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; except that (A) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 70,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, ;
(ii) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the issuing, amending or reinstating such Letter of Credit, or any law law, rule or regulation applicable to the Issuing Lender or any request request, guideline or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance issuance, amendment, renewal or reinstatement of letters of credit generally or the such Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereundercompensated) not in effect on the Effective Closing Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Closing Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(iiiii) the Issuing Lender has received written notice from any Lender, the Administrative Agent or the Borrower, at least one Business Day prior to the requested date of issuance, amendment, renewal or reinstatement of such Letter of Credit, that one or more of the applicable conditions contained in Section 5.2 shall not then be satisfied;
(iv) any requested Letter of Credit is not in form and substance acceptable to the Issuing Lender, or the issuance, amendment or renewal of a Letter of Credit shall violate any applicable laws or regulations or any applicable policies of the Issuing Lender;
(v) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iiivi) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(ivvii) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateralCash Collateral pursuant to Section 3.10, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Defaulting Lender to eliminate the Issuing Lender’s actual or potential fronting exposure Fronting Exposure (after giving effect to Section 2.20(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that such Letter of Credit and all other Obligations under Letters of Credit L/C Exposure as to which the Issuing Lender has actual or potential fronting exposureFronting Exposure, as it may elect in its sole discretion;.
(vviii) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(viix) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
Sources: Credit Agreement (Enernoc Inc)
L/C Commitment. (a) As of the Closing Date, the existing letters of credit set forth on Schedule 5.1 shall be deemed Letters of Credit hereunder. Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the Issuing Lender agreements of the other Lenders set forth in Section 5.4(a), agrees to issue new letters of credit (“Letters of Credit”) for the account of any Borrower requesting the same and for the benefit of such Borrower or any Subsidiary of such Borrower on any Business Day during from the Letter of Credit Availability Period Closing Date until the date that is ten Business Days prior to the Maturity Date in such form as may be approved from time to time by the such Issuing Lender; provided that the such Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment (ii) the aggregate amount of the Utilized Revolving Commitments would be greater than the Revolving Loan Commitments or (iii) the Available Utilized Revolving Commitment at Commitments of such timeBorrower would exceed such Borrower’s Sublimit. Each Letter of Credit shall (i) be denominated in Dollars, or in the discretion (ii) have a face amount of the Issuing Lender, a Foreign Currency; provided that at least $100,000 (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported unless otherwise agreed by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the applicable Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; except that (A) any Letter provided, that, if one or more Letters of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the any time of any such renewal and (B) a Letter of Credit may expire on a have an expiry date that is up to 365 days after later than the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the relevant Borrower provides shall, not later than (i) five days preceding the Maturity Date, cash collateralize in accordance with Section 5.9, on terms and conditions satisfactory to the Administrative Agent and Issuing Lender cash collateral in Lenders, an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the L/C Obligations relating with respect to such Letter Letters of Credit; provided that , if the Dollar Equivalent of relevant Borrower’s Rating in effect is at least BBB- as published by S&P, is at least Baa3 as published by ▇▇▇▇▇’▇ and is at least BBB- as published by Fitch or (ii) fifteen days preceding the aggregate face Maturity Date, cash collateralize in accordance with Section 5.9, on terms and conditions reasonably satisfactory to the Administrative Agent and Issuing Lenders, an amount of all Holdover equal to the L/C Obligations with respect to such Letters of Credit shall not exceed $50,000,000 at any timeif the relevant Borrower’s Rating in effect is lower than BBB- as published by S&P, is lower than Baa3 as published by ▇▇▇▇▇’▇ or is lower than BBB- as published by Fitch; and provided, further, that following the Letter obligations under this Section 5 in respect of such Letters of Credit of (i) the relevant Borrower shall survive the Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent Date and shall remain in effect until no Letters of the face amount of any Foreign Currency L/C at any time andCredit for such Borrower remain outstanding and (ii) each Lender shall be reinstated, to the extent that any such cash collateral, the application thereof or reimbursement in respect thereof is required to be returned to the relevant Borrower by an Issuing Lender after the Maturity Date. Amounts held in such cash collateral previously provided account shall be held and applied by the Borrower is equal to less than 105% of Administrative Agent in the Dollar Equivalent of manner and for the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified purposes set forth in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension10.2(c).
(b) The No Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) if such issuance would conflict with, or cause the such Issuing Lender or any L/C Lender Participant to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force requirement of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by Each Issuing Lender’s share of the aggregate L/C Issuer and Commitment (so determined) shall not exceed the Borrower when a Letter amount that such Issuing Lender has agreed shall be its “Maximum L/C Commitment”. Each Issuing Lender listed in Schedule 1.1 hereby agrees that its “Maximum L/C Commitment” shall be the amount set forth opposite the name of Credit is issued (including such Issuing Lender in Schedule 1.1. The “Maximum L/C Commitment” of any such agreement applicable Issuing Lender that becomes an Issuing Lender after the date hereof pursuant to an Existing Letter of Credit), (i) the rules definition of the ISP “Issuing Lender” shall apply be the amount specified by the Lead Arrangers in consultation with and satisfactory to each standby Letter the Borrowers and such Issuing Lender. In no event shall any Issuing Lender be obligated to increase its “Maximum L/C Commitment” upon any Commitment Increase pursuant to Section 2.6. Concurrently with any reduction of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply Revolving Loan Commitments pursuant to each commercial Letter of Credit.
(d) Unless otherwise specified hereinSection 2.5, the amount “Maximum L/C Commitment” of a Letter of Credit at any time each Issuing Lender shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such timeautomatically reduced pro rata.
Appears in 1 contract
Sources: Revolving Credit Agreement (Dominion Resources Inc /Va/)
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), in reliance on the Issuing Lender agreements of the Committed Note Purchasers set forth in Sections 2.07 and 2.08, agrees to issue provide Liquidity Reserve Letters of Credit or other standby letters of credit requested by Issuer and agreed upon by Letter of Credit Provider in its sole discretion (together with the Liquidity Reserve Letters of Credit each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Borrower Issuer or its designee on any Business Day during at any time until the Letter of Credit Availability Period date that is thirty (30) 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 Issuing LenderLetter of Credit Provider; provided that the Issuing Lender Letter of Credit Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment Commitment, or (ii) the Available Revolving Commitment at such timeSeries 2025-1 Class A-1-V Outstanding Principal Amount would exceed the Series 2025-1 Class A-1-V Notes Maximum Principal Amount. Each Letter of Credit shall (ix) be denominated in Dollars, or in (y) have a face amount of at least $1,000,000 or, with the discretion consent of the Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, Provider and a “Foreign Currency L/C”) shall reasonable administrative fee to be reported agreed upon by the Issuing Bank to Issuer and the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance Letter of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent Credit Provider, less than $1,000,000 and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiz) expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five ten (510) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except provided that (A) any Letter of Credit with a one-year term may provide for the renewal automatic extensions thereof for additional one-periods, each individually not to exceed one year periods (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after unless the Letter of Credit Maturity Date (Provider notifies each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least thirty (30) calendar days prior to an expiry the then-applicable expiration date not (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 extended; provided, further, that any Letter of Credit may have an expiration date that is five later than the Required Expiration Date so long as either (5x) Business Days prior the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the 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 Liquidity Reserve Letters of Credit, arrangements satisfactory to the Letter of Credit Maturity Date; providedProvider in its sole and absolute discretion have been made with the Letter of Credit Provider (and, however, that if the Letter of Credit Provider is not the L/C Issuer shall not permit any Issuing Bank with respect to such extension if (A) Letter of Credit, the L/C Issuer has determined Issuing Bank) pursuant to Section 4.04 such that it 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 2025-1 Liquidity Reserve Letter of Credit shall (1) name the Indenture Trustee, for the benefit of the Secured Parties, and the Servicer as the 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 2025-1 Liquidity Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Liquidity Reserve Account, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such Series 2025-1 Liquidity Reserve Letter of Credit shall be paid directly into the Liquidity Reserve Account or otherwise used to pay Liquidity Reserve Draw Amounts in accordance with Section 5.01(c) of the Base Indenture. The Letter of Credit Provider shall not at any time be permittedobligated 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, obligation at such time to issue such Letter of Credit in its revised amended form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B2) it has received notice each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(which may be by telephone or a) On the terms and conditions set forth in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfiedIndenture and this Agreement, and in each reliance on the covenants, representations and agreements set forth herein and therein, the Issuer shall issue and shall cause the Indenture Trustee to authenticate the Series 2025-1 Class A-1-▇ ▇/C Notes, which the Issuer shall deliver to the Letter of Credit Providers on the Series 2025-1 Closing Date; provided that, if such case directing Series 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 2025-1 Class A-1-▇ ▇/C Note shall be dated the Series 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 Issuer not Commitment, shall have an initial outstanding principal amount equal to permit such extension$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 2025-1 Class 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 2025-1 Class A-1-▇ ▇/C Notes shall be Variable Funding Notes that are Class A-1-V Notes payable in accordance with the Base Indenture, the Series 2025-1 Supplement and this Agreement.
(b) Each drawing on a Letter of Credit after the Series 2025-1 Closing Date will constitute a Borrowing in the outstanding principal amount evidenced by the Series 2025-1 Class 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 2025-1 Class 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 2025-1 Class A-1-▇ ▇/C Note and shall be deemed to be Series 2025-1 Class A-1-V Outstanding Principal Amounts (in the form of Series 2025-1 Class 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 2025-1 Class 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 2025-1 Class A-1-▇ ▇/C Note. Each Letter of Credit Provider and the Issuer agree to promptly notify the Series 2025-1 Class A-1-V Administrative Agent and the Indenture Trustee of any such decreases for which notice to the Series 2025-1 Class A-1-V Administrative Agent is not otherwise provided hereunder.
(c) The 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 Lender 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 2025-1 Class A-1-V Administrative 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 2025-1 Class A-1-V Administrative Agent (based, with respect to any portion of the Series 2025-1 Class A-1-V Outstanding L/C Subfacility Amount held by any Person other than the Series 2025-1 Class A-1-V Administrative Agent, solely on written notices received by the Series 2025-1 Class A-1-V Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series 2025-1 Class A-1-V Outstanding Principal Amount would not exceed the Series 2025-1 Class 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 2025-1 Class A-1-V Administrative Agent for purposes of determining whether the Letter of Credit Provider received such prior written confirmation from the Series 2025-1 Class 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 Issuer. The Letter of Credit Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the Series 2025-1 Class A-1-V Administrative Agent) promptly following the issuance thereof. Each Letter of Credit Provider shall promptly furnish to the Series 2025-1 Class 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).
(d) The Issuer shall pay ratably to the Committed Note Purchasers, based on their respective Commitments, the L/C Monthly Fees in accordance with the terms of the Series 2025-1 Class A-1-V Notes Fee Letter and subject to the Priority of Payments. In addition, the 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 2025-1 Class A-1-V Notes Fee Letter, the “L/C Issuance Fees”) in accordance with the terms of the Series 2025-1 Class A-1-V Notes Fee Letter and subject to the Priority of Payments.
(e) 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.
(f) The Issuer may, upon at least three (3) Business Days’ notice to the Series 2025-1 Class 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 Issuer in writing and with the prior written consent of the Letter of Credit Provider and the Series 2025-1 Class A-1-V Administrative Agent, the Letter of Credit Provider may (but shall not at any time 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 2025-1 Class A-1-V Advance Notes and the L/C Commitment does not exceed the aggregate amount of the Commitments.
(g) 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 Liquidity Reserve Letter of Credit. If any such Letter of Credit would be an Ineligible Liquidity Reserve Letter of Credit, a Person selected by the Issuer (at the reasonable expense of the Issuer) shall issue such Letter of Credit; provided that any Letter of Credit issued by such Person would not be an Ineligible 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 Issuer (at the reasonable expense of the Issuer), in each case in its capacity as the issuer of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit).
(h) Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Issuer in order to have any Letter of Credit issued by a Person selected by the Issuer pursuant to Section 2.06(g) be a “Letter of Credit” that has been issued hereunder and such Person selected by the Issuer be an “L/C Issuing Bank”.
(i) 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) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, 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 Lender 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 Lender Bank, as applicable, or any request or directive (whether which request or not having 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 Lender Bank, as applicable, shall prohibitprohibit the Letter of Credit Provider or the L/C Issuing Bank, or request that the Issuing Lender refrain fromas applicable, the issuance from issuing of letters of credit generally or the Letter of Credit in particular particular, or shall impose upon (iii) the Issuing Lender with respect to the issuance of such Letter of Credit would violate any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance policies of the Letter of Credit would violate one Provider or more policies of the L/C Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Bank regarding Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereofgeneral.
(cj) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuer Issuing Bank, as applicable, and the Borrower Issuer when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit)issued, (i) the rules of the ISP “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, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of CreditCredit issued hereunder.
(dk) Unless otherwise specified hereinFor the avoidance of doubt, the amount 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 2025-1 Class A-1-V Outstanding Principal Amount on such date of determination, pursuant to the definition thereof.
(l) Each Series 2025-1 Liquidity Reserve Letter of Credit at any time (including all drawings thereunder) shall be deemed subject to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent Section 4.07 of the stated amount of such Letter of Credit after giving effect to Base Indenture in all such increases, whether or not such maximum stated amount is in effect at such timerespects.
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, the Issuing Lender Lender, in reliance on the agreements of the other Lenders set forth in Section 3.4(a), agrees to issue standby letters of credit (“Letters of Credit”) for the account of the Borrower on any Business Day during from the Letter of Credit Availability Period Closing Date through but not including the fifth (5th) Business Day prior to the Maturity Date in such form as may be approved from time to time by the Issuing Lender; provided provided, that the Issuing Lender shall have no obligation to issue issue, and the L/C Participants shall have no obligation to participate in, any Letter of Credit if, after giving effect to such issuance, (a) the L/C Exposure Obligations would exceed either the Total L/C Commitment or (b) the Available aggregate principal amount of outstanding Revolving Credit Loans, plus the aggregate principal amount of outstanding Swingline Loans, plus the aggregate amount of L/C Obligations would exceed an amount equal to the lesser of (i) the Commitment at such timeof all Lenders and (ii) the Advance Rate. Each Letter of Credit shall (i) be denominated in Dollarsa standby letter of credit issued to support obligations of the Borrower or any of its Subsidiaries, contingent or otherwise, incurred in the discretion ordinary course of the Issuing Lenderbusiness, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (ii) expire on a date no later more than twelve (12) months after the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five (5) Business Days prior to the or last renewal of such Letter of Credit Maturity Date; except (provided that (A) any Letter of Credit with a one-year term tenor may provide for the automatic renewal thereof for additional one-one (1) year periods (which shall in no event extend beyond the date referred to in clause (y) above) subject pursuant to the Borrower’s satisfaction terms of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Application or other documentation acceptable to the Issuing Lender), which date shall be no later than the fifth (5th) Business Day prior to the Maturity Date and (each such Letter of Creditiii) be subject to ISP98, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to as set forth in the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due Application or to become due in connection therewith (as estimated determined by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that not inconsistent therewith, the cash collateral previously provided by the Borrower is equal to less than 105% laws of the Dollar Equivalent State of New York. As of the face amount Closing Date, each of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter Existing Letters of Credit Applicationshall constitute, for all purposes of this Agreement and the L/C Issuer mayother Loan Documents, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issuedissued and outstanding hereunder. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) hereunder if such issuance would conflict with, or cause the Issuing Lender or any L/C Lender Participant to exceed any limits imposed by, any applicable Requirement Applicable Law. References herein to “issue” and derivations thereof with respect to Letters of Law, including, without limitation, any order, judgment Credit shall also include extensions or decree modifications of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter outstanding Letters of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereofcontext otherwise requires.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
Sources: Credit Agreement (Medimmune Inc /De)
L/C Commitment. (a) Subject to the terms and conditions hereof, Wachovia, as the Issuing Lender Lender, in reliance on the agreements of the other Lenders set forth in Section 3.4(a), agrees to issue standby letters of credit (“"Letters of Credit”") for the account of the Borrower Borrowers on a joint and several basis on any Business Day during from the Letter of Closing Date through but not including the date which is five (5) Business Days prior to the Revolving Credit Availability Period Maturity Date in such form as may be approved from time to time by the Issuing Lender; provided provided, that the Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment or (ii) the Available Revolving Commitment sum of (A) the L/C Obligations at such timetime plus (B) the aggregate principal amount of all outstanding Revolving Credit Loans and Swingline Loans would exceed the then applicable Borrowing Limit. If at any time the L/C Obligations exceed such permitted amount, the Borrowers shall furnish to the Administrative Agent cash collateral satisfactory to the Administrative Agent in an amount equal to such excess to be applied in accordance with Section 12.2(b).
(b) Each Letter of Credit shall (i) be denominated in Dollars, or Dollars in the discretion of the Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face minimum amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and 100,000, (ii) be a standby letter of credit issued to support obligations of the Borrowers or any of their Subsidiaries, contingent or otherwise, incurred in the ordinary course of business, (iii) expire on a date no later than one (1) year from the earlier of (x) the first anniversary of its date of issuance and (y) the thereof; provided, that in no case shall such expiration date that is be later than five (5) Business Days prior to the Letter of Revolving Credit Maturity Date; except that Date and (Aiv) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) be subject to the Borrower’s satisfaction of the conditions Uniform Customs and/or ISPA 98, as set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on Application or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated determined by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that not inconsistent therewith, the cash collateral previously provided by the Borrower is equal to less than 105% laws of the Dollar Equivalent State of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfallNew York. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) hereunder if such issuance would conflict with, or cause the Issuing Lender or any L/C Lender Participant to exceed any limits imposed by, any applicable Requirement Applicable Law. References herein to "issue" and derivations thereof with respect to Letters of Law, including, without limitation, any order, judgment Credit shall also include extensions or decree modifications of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter Existing Letters of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereofcontext otherwise requires.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
Sources: Credit Agreement (Duratek Inc)
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender Lender, in reliance on the agreements of the other Revolving Lenders set forth in Section 3.4(a), agrees to issue letters of credit (“Letters of Credit”) for the account of the Borrower and the Co-Borrower, as the case may be, on any Business Day during the Letter of Credit Availability Revolving Commitment Period in such form as may be approved from time to time by the Issuing Lender; provided that the Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment or Commitment, (ii) the aggregate amount of the Available Revolving Commitment at such timeCommitments would be less than zero or (iii) the aggregate outstanding amount of Letters of Credit issued by it would exceed (x) $30,000,000, in the case of JPMorgan Chase Bank, N.A., (y) $10,000,000, in the case of Fifth Third Bank and (z) $10,000,000, in the case of KeyBank National Association. Each Letter of Credit shall (i) be denominated in Dollars, Dollars or in the discretion of the Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign another Acceptable Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five (5) Business Days prior to the Revolving Termination Date; provided that (1) any Letter of Credit Maturity Date; except that may have an expiry date later than the date referred to in clause (Ay) above if no later than the 30th day prior to the Revolving Termination Date (or for any Letters of Credit issued after such date, the date of issuance), the Borrower shall deposit in a cash collateral account opened by the Administrative Agent an amount equal to 105% of the aggregate then undrawn and unexpired amount of such Letters of Credit and (2) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) aboveabove (or, as long as the requirements under clause (1) subject to are satisfied, the Borrower’s satisfaction first anniversary of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Revolving Termination Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) if such issuance would conflict with, or cause the Issuing Lender or any L/C Lender Participant to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by The parties hereto agree that the L/C Issuer and the Borrower when a Letter Existing Letters of Credit is issued (including will automatically, without any such agreement applicable to an Existing Letter further action on the part of Credit)any Person, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter Letters of Credit in effect at hereunder issued hereunder on the Restatement Date for the account of the Borrower. Without limiting the foregoing (i) each such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Existing Letter of Credit shall be deemed to be included in the maximum Dollar Equivalent calculation of the stated amount L/C Obligations, (ii) all liabilities of the Borrower and the other Loan Parties with respect to such Letter Existing Letters of Credit after giving effect shall constitute Obligations and (iii) each Lender shall have reimbursement obligations with respect to all such increases, whether or not such maximum stated amount is Existing Letters of Credit as provided in effect at such timeSection 3.4.
Appears in 1 contract
Sources: Credit Agreement (Allscripts Healthcare Solutions, Inc.)
L/C Commitment. (a) As of the Closing Date, the existing letters of credit set forth on Schedule 5.1 (“Existing Letters of Credit”) shall be deemed Letters of Credit hereunder. Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the Issuing Lender agreements of the other Lenders set forth in Section 5.4(a), agrees to issue new letters of credit (“Letters of Credit”) for the account of any Borrower requesting the same and for the benefit of such Borrower or any Subsidiary of such Borrower on any Business Day during from the Letter of Credit Availability Period Closing Date until the date that is ten Business Days prior to the Maturity Date in such form as may be approved from time to time by the such Issuing Lender; provided that the such Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment (ii) the aggregate amount of the Utilized Revolving Commitments would be greater than the Revolving Loan Commitments or (iii) the Available Utilized Revolving Commitment at Commitments of such timeBorrower would exceed such Borrower’s Sublimit. Each Letter of Credit shall (i) be denominated in Dollars, or in the discretion (ii) have a face amount of the Issuing Lender, a Foreign Currency; provided that at least $100,000 (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported unless otherwise agreed by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the applicable Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; except that (A) any Letter provided, that, if one or more Letters of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the any time of any such renewal and (B) a Letter of Credit may expire on a have an expiry date that is up to 365 days after later than the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the relevant Borrower provides shall, not later than (i) five days preceding the Maturity Date, cash collateralize in accordance with Section 5.9, on terms and conditions satisfactory to the Administrative Agent and Issuing Lender cash collateral in Lenders, an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the L/C Obligations relating with respect to such Letter Letters of Credit; provided that , if the Dollar Equivalent of relevant Borrower’s Rating in effect is at least BBB- as published by S&P, is at least Baa3 as published by M▇▇▇▇’▇ and is at least BBB- as published by Fitch or (ii) fifteen days preceding the aggregate face Maturity Date, cash collateralize in accordance with Section 5.9, on terms and conditions reasonably satisfactory to the Administrative Agent and Issuing Lenders, an amount of all Holdover equal to the L/C Obligations with respect to such Letters of Credit shall not exceed $50,000,000 at any timeif the relevant Borrower’s Rating in effect is lower than BBB- as published by S&P, is lower than Baa3 as published by M▇▇▇▇’▇ or is lower than BBB- as published by Fitch; and provided, further, that following the Letter obligations under this Section 5 in respect of such Letters of Credit of (i) the relevant Borrower shall survive the Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent Date and shall remain in effect until no Letters of the face amount of any Foreign Currency L/C at any time andCredit for such Borrower remain outstanding and (ii) each Lender shall be reinstated, to the extent that any such cash collateral, the application thereof or reimbursement in respect thereof is required to be returned to the relevant Borrower by an Issuing Lender after the Maturity Date. Amounts held in such cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders account shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, held and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed applied by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, manner and for the purposes set forth in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a10.2(c), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
Sources: Revolving Credit Agreement (Dominion Energy South Carolina, Inc.)
L/C Commitment. (axxii) Subject to the terms and conditions hereof, the Issuing Lender Lender, in reliance on the agreements of the other Revolving Lenders set forth in Section 3.4(a), agrees to issue letters of credit (“Letters of Credit”) (x) upon the request of the U.S. Borrower, for the account of the Borrower U.S. Borrower, any Domestic Subsidiary or any Canadian Subsidiary, in each case on any Business Day during the Letter of Credit Availability Revolving Commitment Period in such form as may be approved from time to time by the Issuing Lender; provided that the Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, (ii) the L/C Obligations in respect of Letters of Credit issued by it would exceed $20,000,000, (iii) the aggregate amount of the Available Revolving Commitments would be less than zero or (iv) with respect to any Lender, the sum of (x) the Swingline Exposure of such Lender (in its capacity as the Swingline Lender (if applicable) and a Revolving Lender), (y) the aggregate principal amount of the Dollar Equivalent of the outstanding Revolving Loans made by such Lender and (z) the L/C Exposure of such Lender would exceed either the Total L/C Commitment or the Available its Revolving Commitment at such timethen in effect. Each Letter of Credit shall (i) (x) be denominated in Dollars, Dollars or in the discretion of the Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in an Acceptable Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiy) expire no later than the earlier of (x1) the first anniversary of its date of issuance and (y2) the date that is five (5) Business Days prior to the Letter of Credit Maturity Revolving Termination Date; except , provided that (A) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y2) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of ); provided further that any such renewal and (B) a Letter of Credit may (notwithstanding clause (2) or the immediately preceding proviso above) expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to Revolving Termination Date so long as the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of has approved such Letter of Credit plus all interest, fees, expiration date and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless cash collateralized or otherwise directed by the L/C Issuer, the Borrower shall not be required to make backstopped in a specific request manner reasonably acceptable to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit Issuing Lender at any time to an expiry date not later than the date that is five (5) least eight Business Days prior to the Revolving Termination Date.
(a) Subject to the terms and conditions hereof, each Existing Letter of Credit Maturity shall, effective as of the Restatement Effective Date; provided, howeverand without further action by any Borrower, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such continued as a Letter of Credit in its revised form (as extended) under hereunder, and from and after the Restatement Effective Date shall be deemed to be a Letter of Credit for all purposes hereof and shall be subject to and governed by the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable and conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extensionhereof.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) if such issuance would conflict with, or cause the Issuing Lender or any L/C Lender Participant to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender L/C Provider (or its permitted assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.08 and 2.09, agrees to issue provide standby letters of credit credit, including Interest Reserve Letters of Credit (each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Borrower Master Issuer or its designee on any Business Day during the Letter of Credit Availability Period 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 2.07(h) in such form as may be approved from time to time by the Issuing LenderL/C Provider; provided that the Issuing Lender L/C Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment or (ii) the Available Revolving Commitment at such timeSeries 2017-1 Class A-1 Outstanding Principal Amount would exceed the Series 2017-1 Class A-1 Maximum Principal Amount. Each Letter of Credit shall (ix) be denominated in Dollars, or in the discretion (y) have a face amount of the Issuing Lenderat least $25,000 or, if less than $25,000, shall bear a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall reasonable administrative fee to be reported agreed upon by the Issuing Bank to Master Issuer and the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent Provider and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiz) expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five ten (510) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except provided that (A) any Letter of Credit with a one-year term may provide for the automatic renewal thereof for additional one-periods, each individually not to exceed one year periods (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, unless the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to Provider notifies the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least 30 calendar days prior to an expiry the then-applicable expiration date not (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 five later than the Required Expiration Date so long as (5x) Business Days prior the Undrawn L/C Face Amount with respect to the such Letter of Credit Maturity Date; provided, however, that has been fully cash collateralized by the Master 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 and (y) such arrangement is satisfactory to the L/C Issuer Provider in its sole and absolute discretion. Additionally, each Interest Reserve Letter of Credit shall (1) name each of (A) the Trustee, for the benefit of the Senior Noteholders or the Senior Subordinated Noteholders, as applicable, on its behalf, and (B) the Control Party as the beneficiary thereof; (2) allow the Trustee or the Control Party to submit a notice of drawing in respect of such 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 Interest Reserve Letter of Credit shall be paid directly into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable. The L/C Provider shall not permit at any time be obligated to (I) provide any Letter of Credit hereunder if such extension 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 (A1) the L/C Issuer has determined that it would not be permitted, or Provider would have no obligation, obligation at such time to issue such Letter of Credit in its revised amended form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii2) the issuance beneficiary of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of does not accept the stated amount thereof after any drawing thereunder; or
(vi) subject proposed amendment to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(db) Unless otherwise specified hereinOn 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 Master Issuer shall issue and shall cause the Trustee to authenticate the Series 2017-1 Class A-1 L/C Note, which the Master Issuer shall deliver to the L/C Provider on the Series 2017-1 Closing Date. Such Series 2017-1 Class A-1 L/C Note shall be dated the Series 2017-1 Closing Date, shall be registered in the name of the L/C Provider or in such other name or nominee as the 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 the Series 2017-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and shall be duly authenticated in accordance with the provisions of the Indenture. Each issuance of a Letter of Credit at any time after the Series 2017-1 Closing Date will constitute an Increase in the outstanding principal amount evidenced by the Series 2017-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of 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 Dollar Equivalent Series 2017-1 Class A-1 L/C Note and shall be deemed to be Series 2017-1 Class A-1 Outstanding Principal Amounts for all purposes of stated this Agreement, the Indenture and the other Related Documents other than, in the case of Undrawn L/C Face Amounts, for purposes of accrual of interest. Subject to the terms of this Agreement and the Series 2017-1 Supplement, the outstanding principal amount evidenced by the Series 2017-1 Class A-1 L/C Note 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 Undrawn L/C Face Amounts from time to time. The L/C Provider and the Master Issuer agree to promptly notify the Administrative Agent and the Trustee of any such decreases for which notice to the Administrative Agent is not otherwise provided hereunder.
(c) The Master Issuer may (or shall cause the Manager on its behalf to) from time to time request that the L/C Provider either (i) provide a new Letter of Credit and (ii) provide a new “back-to-back” Letter of Credit to an existing letter of credit provider to secure a letter of credit in existence prior to the Series 2017-1 Closing Date, by delivering to the L/C Provider at its address for notices specified herein an Application therefor (in the form required by the applicable L/C Issuing Bank as notified to the Master Issuer by the L/C Provider), completed to the satisfaction of the 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 letters of credit set forth on Schedule IV hereto shall be deemed Letters of Credit provided and issued by the L/C Provider hereunder as of the Series 2017-1 Closing Date. Upon receipt of any completed Application, the L/C Provider will notify the Administrative Agent and the Trustee in writing of the amount, the beneficiary and the requested expiration of the requested Letter of Credit (which shall comply with Section 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 Administrative Agent (based, with respect to any portion of the Series 2017-1 Class A-1 Outstanding Subfacility Amount held by any Person other than the Administrative Agent, solely on written notices received by the Administrative Agent under this Agreement) that after giving effect at to the requested issuance, the Series 2017-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2017-1 Class A-1 Maximum Principal Amount (provided that the 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 Administrative Agent for purposes of determining whether the L/C Provider received such time; provided, however, that prior written confirmation from the Administrative Agent with respect to any Letter of Credit), the 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 thatrequested thereby (but in no event shall the 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, by its terms or the terms of any Issuer Document related documents and other papers and information relating thereto, provides for one or more automatic increases as provided in Section 2.07(a)) by issuing the stated amount thereof, the amount original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by the L/C Provider and the Master Issuer. The L/C Provider shall be deemed to be the maximum Dollar Equivalent of the stated amount furnish a copy of such Letter of Credit to the Manager (with a copy to the Administrative Agent) promptly following the issuance thereof. The L/C Provider shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof).
(d) The Master Issuer shall pay ratably to the Committed Note Purchasers the L/C Quarterly Fees (as defined in the Series 2017-1 Class A-1 VFN Fee Letter, the “L/C Quarterly Fees”) in accordance with the terms of the Series 2017-1 Class A-1 VFN Fee Letter and subject to the Priority of Payments.
(e) 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.
(f) The Master Issuer may, upon three (3) Business Days’ notice to the Administrative Agent and the L/C Provider, effect a permanent reduction in the L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Master Issuer in writing and with the prior written consent of the L/C Provider and the Administrative Agent, the 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 2017-1 Class A-1 Note Advances, the Swingline Commitment and the L/C Commitment does not exceed the aggregate Commitment Amounts.
(g) The L/C Provider shall satisfy its obligations under this Section 2.07 with respect to all providing any Letter of Credit hereunder by issuing such increasesLetter of Credit itself or through an Affiliate, whether so long as the L/C Issuing Bank Rating Test is satisfied with respect to such Affiliate and the issuance of such Letter of Credit. If the L/C Issuing Bank Rating Test is not satisfied with respect to such Affiliate and the issuance of such Letter of Credit, the L/C Provider or not a Person selected by (at the expense of the L/C Provider) the Master Issuer shall issue such maximum stated amount is in effect at Letter of Credit; provided that such time.Person and issuance of such Letter of Credit
Appears in 1 contract
Sources: Class a 1 Note Purchase Agreement (Dunkin' Brands Group, Inc.)
L/C Commitment. (a) As of the Closing Date, the existing letters of credit set forth on Schedule 5.1 shall be deemed Letters of Credit hereunder. Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the Issuing Lender agreements of the other Lenders set forth in Section 5.4(a), agrees to issue new letters of credit (“Letters of Credit”) for the account of any Borrower requesting the same and for the benefit of such Borrower or any Subsidiary of such Borrower on any Business Day during from the Letter of Credit Availability Period Closing Date until the date that is ten Business Days prior to the Maturity Date in such form as may be approved from time to time by the such Issuing Lender; provided that the such Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment (ii) the aggregate amount of the Utilized Revolving Commitments would be greater than the Revolving Loan Commitments or (iii) the Available Utilized Revolving Commitment at Commitments of such timeBorrower would exceed such Borrower’s Sublimit. Each Letter of Credit shall (i) be denominated in Dollars, or in the discretion (ii) have a face amount of the Issuing Lender, a Foreign Currency; provided that at least $1,000,000 (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported unless otherwise agreed by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the applicable Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; except that (A) any Letter provided, that, if one or more Letters of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the any time of any such renewal and (B) a Letter of Credit may expire on a have an expiry date that is up to 365 days after later than the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the relevant Borrower provides shall, not later than (i) five days preceding the Maturity Date, cash collateralize in accordance with Section 5.9, on terms and conditions satisfactory to the Administrative Agent and Issuing Lender cash collateral in Lenders, an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the L/C Obligations relating with respect to such Letter Letters of Credit; provided that , if the Dollar Equivalent of relevant Borrower’s Rating in effect is at least BBB- as published by S&P, is at least Baa3 as published by ▇▇▇▇▇’▇ and is at least BBB- as published by Fitch or (ii) fifteen days preceding the aggregate face Maturity Date, cash collateralize in accordance with Section 5.9, on terms and conditions reasonably satisfactory to the Administrative Agent and Issuing Lenders, an amount of all Holdover equal to the L/C Obligations with respect to such Letters of Credit shall not exceed $50,000,000 at any timeif the relevant Borrower’s Rating in effect is lower than BBB- as published by S&P, is lower than Baa3 as published by ▇▇▇▇▇’▇ or is lower than BBB- as published by Fitch; and provided, further, that following the Letter obligations under this Section 5 in respect of such Letters of Credit of (i) the relevant Borrower shall survive the Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent Date and shall remain in effect until no Letters of the face amount of any Foreign Currency L/C at any time andCredit for such Borrower remain outstanding and (ii) each Lender shall be reinstated, to the extent that any such cash collateral, the application thereof or reimbursement in respect thereof is required to be returned to the relevant Borrower by an Issuing Lender after the Maturity Date. Amounts held in such cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders account shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, held and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed applied by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, manner and for the purposes set forth in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a10.2(c), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
Sources: Revolving Credit Agreement (Dominion Resources Inc /Va/)
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender Lender, in reliance on the agreements of the other Revolving Lenders set forth in Section 3.4(a), agrees to issue letters of credit (“Letters of Credit”) (x) upon the request of the U.S. Borrower, for the account of the Borrower U.S. Borrower, any Domestic Subsidiary or any Canadian Subsidiary, in each case on any Business Day during the Letter of Credit Availability Revolving Commitment Period in such form as may be approved from time to time by the Issuing Lender; provided that the Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, (ii) the L/C Obligations in respect of Letters of Credit issued by it would exceed $20,000,000, (iii) the aggregate amount of the Available Revolving Commitments would be less than zero or (iv) with respect to any Lender, the sum of (x) the Swingline Exposure of such Lender (in its capacity as the Swingline Lender (if applicable) and a Revolving Lender), (y) the aggregate principal amount of the Dollar Equivalent of the outstanding Revolving Loans made by such Lender and (z) the L/C Exposure of such Lender would exceed either the Total L/C Commitment or the Available its Revolving Commitment at such timethen in effect. Each Letter of Credit shall (i) (x) be denominated in Dollars, Dollars or in the discretion of the Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in an Acceptable Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiy) expire no later than the earlier of (x1) the first anniversary of its date of issuance and (y2) the date that is five (5) Business Days prior to the Letter of Credit Maturity Revolving Termination Date; except , provided that (A) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y2) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of ); provided further that any such renewal and (B) a Letter of Credit may (notwithstanding clause (2) or the immediately preceding proviso above) expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to Revolving Termination Date so long as the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of has approved such Letter of Credit plus all interest, fees, expiration date and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless cash collateralized or otherwise directed by the L/C Issuer, the Borrower shall not be required to make backstopped in a specific request manner reasonably acceptable to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit Issuing Lender at any time to an expiry date not later than the date that is five (5) least eight Business Days prior to the Letter of Credit Maturity Revolving Termination Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) Subject to the terms and conditions hereof, each Existing Letter of Credit shall, effective as of the Restatement Effective Date, and without further action by any Borrower, be continued as a Letter of Credit hereunder, and from and after the Restatement Effective Date shall be deemed to be a Letter of Credit for all purposes hereof and shall be subject to and governed by the terms and conditions hereof.
(c) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) if such issuance would conflict with, or cause the Issuing Lender or any L/C Lender Participant to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
L/C Commitment. (a) Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the Issuing Lender agreements of the other Revolving Credit Lenders set forth in subsection 3.4(a), agrees to continue under this Agreement for the account of the Parent Borrower the Existing Letters of Credit issued by it and to issue letters of credit (the letters of credit issued on and after the Closing Date pursuant to this Section 3, together with the Existing Letters of Credit, collectively, the “Letters of Credit”) for the account of the applicable Borrower or (if required by the applicable Issuing Lender, so long as a Borrower is a co-applicant and jointly and severally liable thereunder) any Restricted Subsidiary on any Business Day during the Letter of Credit Availability Commitment Period but in no event later than the fifth day prior to the Termination Date in such form as may be approved from time to time by the Issuing Lender; provided that the Issuing Lender shall have no obligation to issue any Letter of Credit shall be issued if, after giving effect to such issuance, (i) the aggregate Extensions of Credit to the Borrowers would exceed the applicable limitations set forth in subsection 2.1, (ii) the L/C Exposure Obligations in respect of Letters of Credit would exceed either $50.0 million or (iii) the Total L/C Commitment or Aggregate Outstanding Credit of all the Available Revolving Commitment at such time. Credit Lenders would exceed the Commitments of all the Revolving Credit Lenders then in effect.
(b) Each Letter of Credit shall (i) be denominated in Dollars, or in the discretion an aggregate principal amount no less than $50,000 and shall be either (i) a standby letter of credit issued to support obligations of the Issuing LenderParent Borrower or any of its Restricted Subsidiaries, contingent or otherwise, which finance or otherwise arise in connection with the working capital and business needs of the Parent Borrower or its Restricted Subsidiaries, and for general corporate purposes, of the Parent Borrower or any of its Restricted Subsidiaries (a Foreign Currency; provided that (A) the Dollar Equivalent of each “Standby Letter of Credit denominated Credit”), or (ii) a commercial letter of credit in Foreign Currency respect of the purchase of goods or services by the Parent Borrower, or any of its Restricted Subsidiaries (each, a “Foreign Currency Commercial L/C”) shall be reported ), and unless otherwise agreed by the applicable Issuing Bank to Lender and, in the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance case of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and clause (B) below, the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (ii) Administrative Agent, expire no later than the earlier of (xA) the first anniversary of one year after its date of issuance and (yB) the date that is five (5) fifth Business Days Day prior to the Letter of Credit Maturity Termination Date; except that (A) provided that, notwithstanding any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) subject to the Borrower’s satisfaction extension of the conditions set forth in Section 5.2 at the time of any such renewal and (B) Termination Date pursuant to subsection 2.8, unless otherwise agreed, no Issuing Lender shall be obligated to issue a Letter of Credit may expire on a date that is up to 365 days after expires beyond the Letter of Credit Maturity Date non-extended Termination Date.
(each such Letter of Credit, a “Holdover Letter of Credit”c) if, on or before the date that is five (5) Business Days prior Notwithstanding anything to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral contrary in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretionsubsection 3.1(b), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower Representative so requests in any applicable Letter of Credit Application, the L/C Issuer Request, the applicable Issuing Lender may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension renewal provisions (each, an “Auto-Extension Letter of CreditRenewal L/C”); provided that any such Auto-Extension Letter of Credit Renewal L/C must permit the L/C Issuer applicable Issuing Lender to prevent any such extension renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuerapplicable Issuing Lender, the applicable Borrower shall not be required to make a specific request to the L/C Issuer such Issuing Lender for any such extensionrenewal. Once an Auto-Extension Letter of Credit Renewal L/C has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer applicable Issuing Lender to permit the extension renewal of such Letter of Credit at any time to an extended expiry date not later than the earlier of (i) one year from the date that is five of such renewal and (5ii) the fifth Business Days Day prior to the Letter of Credit Maturity Termination Date; provided, however, provided that the L/C Issuer such Issuing Lender shall not permit any such extension renewal if (Ax) the L/C Issuer such Issuing Lender has determined that it would not be permitted, or would have no obligation, obligation at such time to issue such Letter of Credit in its revised renewed form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(bsubsection 3.2(c) or otherwise), or (By) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) two Business Days before the Non-Extension Notice Date date which has been agreed upon pursuant to the proviso of the first sentence of this clause (c), (1) from the Administrative Agent that any Lender directly affected thereby has elected not to permit such renewal or (2) from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is 6 are not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the such Letter of Credit would violate one or more policies subsection 3.1.
(d) Each Letter of Credit issued by an Issuing Lender shall be deemed to constitute a utilization of the Commitments, and shall be participated in (as more fully described in the following subsection 3.4) by the Lenders in accordance with their respective Commitment Percentages. All Letters of Credit issued hereunder shall be denominated in Dollars and shall be issued for the account of the applicable Borrower or (if required by the applicable Issuing Lender applicable to letters of credit generally;Lender, so long as a Borrower is a co-applicant and jointly and severally liable thereunder) any Subsidiary.
(iiie) except as Unless otherwise agreed by the Administrative Agent applicable Issuing Lender and the Issuing LenderParent Borrower, the each Letter of Credit is shall be governed by, and shall be construed in an initial Dollar Equivalent stated amount less than $100,000accordance with, in the case laws of a commercial Letter the State of CreditNew York, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory and to the Issuing Lender (in its sole discretion) with the Borrower or extent not prohibited by such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposurelaws, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, Credit and (ii) the rules of UCP 600 at the time of issuance Uniform Customs shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at . The ISP shall not in any time shall be deemed event apply to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter this Agreement. All Letters of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such timeissued on a sight basis only.
Appears in 1 contract
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender L/C Provider (or its permitted assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.08 and 2.09, agrees to issue provide standby letters of credit credit, including Interest Reserve Letters of Credit (each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Borrower Issuer or its designee on any Business Day during the Letter of Credit Availability Period 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 2.07(h) in such form as may be approved from time to time by the Issuing LenderL/C Provider; provided that the Issuing Lender L/C Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment or (ii) the Available Revolving Commitment at such timeSeries 2020-1 Class A-1 Outstanding Principal Amount would exceed the Series 2020-1 Class A-1 Notes Maximum Principal Amount. Each Letter of Credit shall (ix) be denominated in Dollars, or in the discretion (y) have a face amount of the Issuing Lenderat least $25,000 or, if less than $25,000, shall bear a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall reasonable administrative fee to be reported agreed upon by the Issuing Bank to Issuer and the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent Provider and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiz) expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five ten (510) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except provided that (A) any Letter of Credit with a one-year term may provide for the automatic renewal thereof for additional one-periods, each individually not to exceed one year periods (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, unless the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to Provider notifies the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least thirty (30) calendar days prior to an expiry the then-applicable expiration date not (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 five later than the Required Expiration Date so long as either (5x) Business Days prior the Undrawn L/C Face Amount with respect to the such Letter of Credit Maturity Date; providedhas been fully cash collateralized by the 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, however, that arrangements satisfactory to the L/C Issuer Provider in its sole and absolute discretion have been made with the L/C Provider (and, if the 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 Interest Reserve Letter of Credit shall (1) name each of (A) the 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 Trustee or the Control Party to submit a notice of drawing in respect of such 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 Interest Reserve Letter of Credit shall be paid directly into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable. The L/C Provider shall not permit at any time be obligated to (I) provide any Letter of Credit hereunder if such extension 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 (A1) the L/C Issuer has determined that it would not be permitted, or Provider would have no obligation, obligation at such time to issue such Letter of Credit in its revised amended form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B2) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more each beneficiary of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of does not accept the stated amount thereof after any drawing thereunder; or
(vi) subject proposed amendment to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(db) Unless otherwise specified hereinOn 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 Issuer shall issue and shall cause the Trustee to authenticate the Series 2020-1 Class A-1 L/C Note, which the Issuer shall deliver to the L/C Provider on the Series 2020-1 Closing Date; provided that, if such Series 2020-1 Class A-1 L/C Note is an Uncertificated Note, the Trustee shall instead register it as described in Section 4.1(f) of the Series 2020-1 Supplement. Such Series 2020-1 Class A-1 L/C Note shall be dated the Series 2020-1 Closing Date, shall be registered in the name of the L/C Provider or in such other name or nominee as the 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 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. Each issuance of a Letter of Credit at any time after the Series 2020-1 Closing Date will constitute an Increase in the outstanding principal amount evidenced by the Series 2020-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of 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 Dollar Equivalent Series 2020-1 Class A-1 L/C Note and shall be deemed to be Series 2020-1 Class A-1 Outstanding Principal Amounts for all purposes of stated amount this Agreement, the Indenture and the other Transaction Documents other than, in the case of such Undrawn L/C Face Amounts, for purposes of accrual of interest. Subject to the terms of this Agreement and the Series 2020-1 Supplement, each issuance of a Letter of Credit will constitute a Subfacility Increase in the outstanding principal amount evidenced by the Series 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 Subfacility Decrease in the outstanding principal amount evidenced by the Series 2020-1 Class A-1 L/C Note. The L/C Provider and the Issuer agree to promptly notify the Administrative Agent and the Trustee of any such decreases for which notice to the Administrative Agent is not otherwise provided hereunder.
(c) The Issuer may (or shall cause the Manager on its behalf to) from time to time request that the L/C Provider provide a new Letter of Credit by delivering to the L/C Provider at its address for notices specified herein an Application therefor (in the form required by the applicable L/C Issuing Bank as notified to the Issuer by the L/C Provider), completed to the satisfaction of the 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 letters of credit set forth on Schedule IV hereto shall be deemed Letters of Credit provided and issued by the L/C Provider hereunder as of the Series 2020-1 Closing Date. Upon receipt of any completed Application, the L/C Provider will notify the Administrative Agent and the 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 2.07(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 Administrative Agent (based, with respect to any portion of the Series 2020-1 Class A-1 Outstanding Subfacility Amount held by any Person other than the Administrative Agent, solely on written notices received by the Administrative Agent under this Agreement) that after giving effect at to the requested issuance, the Series 2020-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2020-1 Class A-1 Notes Maximum Principal Amount (provided that the 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 Administrative Agent for purposes of determining whether the L/C Provider received such time; provided, however, that prior written confirmation from the Administrative Agent with respect to any Letter of Credit), the 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 thatrequested thereby (but in no event shall the L/C Provider be required to provide any Letter of Credit earlier than three Business Days after its receipt of the Application therefor and all such other certificates, by its terms or the terms of any Issuer Document related documents and other papers and information relating thereto, provides for one or more automatic increases as provided in Section 2.07(a)) by issuing the stated amount thereof, the amount original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the L/C Provider and the Issuer. The L/C Provider shall be deemed to be the maximum Dollar Equivalent of the stated amount furnish a copy of such Letter of Credit to the Manager (with a copy to the Administrative Agent) promptly following the issuance thereof. The L/C Provider shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof).
(d) The Issuer shall pay ratably to the Committed Note Purchasers the L/C Quarterly Fees (as defined in the Series 2020-1 Class A-1 Administrative Agent Fee Letter, the “L/C Quarterly Fees”) in accordance with the terms of the Series 2020-1 Class A-1 Administrative Agent Fee Letter and subject to the Priority of Payments.
(e) [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.
(g) The Issuer may, upon at least three (3) Business Days’ notice to the Administrative Agent and the L/C Provider, effect a permanent reduction in the L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Issuer in writing and with the prior written consent of the L/C Provider and the Administrative Agent, the 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 2020-1 Class A-1 Note Advances, the Swingline Commitment and the L/C Commitment does not exceed the aggregate amount of the Commitments.
(h) The L/C Provider shall satisfy its obligations under this Section 2.07 with respect to all providing any Letter of Credit hereunder by issuing such increasesLetter of Credit itself or through an Affiliate if the L/C Issuing Bank Rating Test is satisfied with respect to any such Affiliate. If the L/C Issuing Bank Rating Test is not satisfied with respect to any such Affiliate, whether then the L/C Provider or a Person selected by the Issuer (at the expense of the L/C Provider, including any expenses in connection with amendments to this Agreement necessary to effectuate the issuance of Letters of Credit by such Person hereunder) shall issue such Letter of Credit; provided that such Person satisfies the L/C Issuing Bank Rating Test (the L/C Provider (or such Affiliate of the L/C Provider) in its capacity as the issuer of such Letter of Credit or such other Person selected by the Issuer (at the expense of the 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, (i) a short-term debt credit rating of not less than “A-2” (or then equivalent grade) from S&P or KBRA and (ii) a long-term debt credit rating of not less than “BBB” (or then equivalent grade) from S&P or KBRA or such maximum stated amount is 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 Issuer in effect at order to have any letter of credit issued by a Person selected by the Issuer pursuant to this Section 2.07(h) or Section 5.17 of the Base Indenture be a “Letter of Credit” that has been issued hereunder and such timePerson selected by the Issuer be an “L/C Issuing Bank”.
Appears in 1 contract
Sources: Class a 1 Note Purchase Agreement (Vale Merger Sub, Inc.)
L/C Commitment. (a) Subject to the terms and conditions hereof, in reliance on the agreements of the other Lenders set forth in subsection 3.4(a), Chase, as an Issuing Lender Bank, agrees to continue to hold outstanding Existing Letters of Credit issued prior to the date hereof and originally for the account of one of the borrowers party to the Existing Credit Agreement and each Issuing Bank agrees to issue letters of credit (“collectively, whether Existing Letters of Credit or letters of credit to be issued pursuant to the terms hereof, "Letters of Credit”") for the account of the Borrower on any Business Day during the Letter of Revolving Credit Availability Commitment Period in such form as may be approved from time to time by the such Issuing LenderBank; provided that the such Issuing Lender Bank shall not, and shall have no obligation to to, issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment or (ii) the Available Revolving Credit Commitment at such timeof all the Lenders would be less than zero. Each Letter of Credit shall (i) be denominated in Dollars, Dollars or in the discretion of the Issuing Lender, a Foreign Currency; , provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Letters of Credit denominated in such Foreign Currency L/Cs Currencies (as determined at the time of issuance of any Letter of Credit) shall not exceed $20,000,000 at any time; 20,000,000, and shall be either (x) a standby letter of credit issued to support obligations of the Borrower or its Subsidiaries, contingent or otherwise for general corporate needs (a "Standby Letter of Credit"), or (y) a documentary letter of credit in respect of the purchase of goods or services by the Borrower or its Subsidiaries in the ordinary course of business (a "Commercial Letter of Credit") and (ii) expire no later than the earlier of (x) one year from the first anniversary of its date of issuance and thereof or (y) the date that is five (5) Business Days business days prior to the Letter of Credit Maturity Termination Date; except , provided that (A) any Letter of Credit with a one-year term tenor may provide for the renewal thereof for additional one-year periods (periods, which shall in no event extend beyond the date referred to in clause (yii) above.
(b) Each Letter of Credit shall be subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time Uniform Customs and, to the extent that not inconsistent therewith, the cash collateral previously provided by the Borrower is equal to less than 105% laws of the Dollar Equivalent State of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extensionNew York.
(bc) The No Issuing Lender Bank shall not at any time be obligated to issue any Letter of Credit if:
(i) hereunder if such issuance would conflict with, or cause the such Issuing Lender Bank or any L/C Lender Participant to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
L/C Commitment. (a) Subject to Section 2.3.1 and the other terms and conditions hereofprovisions of this Agreement, the Issuing Lender agrees to issue letters of credit (standby, documentary and trade), in each case containing such terms and conditions as are permitted by this Agreement and are reasonably satisfactory to the Issuing Lender (each, a “Letters Letter of 1377643.07 Credit”) ), at the request of and for the account of the Borrower on any Business Day during the Letter of Credit Availability Period in such form as may be approved Company from time to time by before the Issuing Lender; provided that the Issuing Lender shall have no obligation to issue any Letter of Credit ifscheduled Termination Date and, after giving effect to such issuance, the L/C Exposure would exceed either the Total L/C Commitment or the Available Revolving Commitment at such time. Each Letter of Credit shall (i) be denominated in Dollars, or in the discretion of the Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or as more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; except that (A) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) subject to the Borrower’s satisfaction of the conditions fully set forth in Section 5.2 at the time of any such renewal and (B) 2.3.2, each Lender with a Letter of Credit may expire on Revolving Commitment agrees to purchase a date that is up to 365 days after the Letter of Credit Maturity Date (participation in each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of (a) the aggregate face amount Stated Amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, exceed Twenty Five Million Dollars ($25,000,000) and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender the Revolving Outstandings shall not at any time be obligated exceed the Revolving Commitment (less the amount of any Swing Line Loans outstanding at such time). Subject to issue the foregoing limitations in this Section, and the other requirements in this Agreement, the Administrative Agent, the Issuing Lender, the Company and each Lender agrees that any letter of credit issued by the Letter of Credit if:
(i) such issuance would conflict with, or cause Issuer prior to the Issuing Lender date of this Agreement for the account of the Company or any L/C Lender other Loan Party shall, for all purposes, be deemed to exceed any limits imposed by, any applicable Requirement be a Letter of LawCredit under this Agreement and under the other Loan Documents, including, without limitation, any order, judgment or decree limitation the following letters of any Governmental Authority or arbitrator shall credit: (i) the outstanding letter of credit issued for the account of the Company by its terms purport to enjoin or restrain the Issuing Lender from issuing bearing LOC #S580339 in the Letter amount of Credit$325,000.00, or any law applicable to naming Safety National Casualty as beneficiary, and bearing an expiry date of April 29, 2008, (ii) the outstanding letter of credit issued for the account of the Company by the Issuing Lender or any request or directive (whether or not having bearing LOC #S580338 in the force amount of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit$450,000.00, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good naming K▇▇▇▇▇ ▇▇▇▇▇ material to it;
Insurance as beneficiary, and bearing an expiry date of May 6, 2008, (iiiii) the issuance outstanding letter of credit issued for the account of the Letter of Credit would violate one or more policies of Company by the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, bearing LOC #S580337 in the case amount of a commercial Letter $4,730,381.00, naming The Travelers Indemnity Company as beneficiary, and bearing an expiry date of CreditMay 6, or $500,0002008, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the outstanding letter of credit issued for the account of the Company by the Issuing Lender has entered into arrangementsbearing LOC #S599094 in the amount of $230,000, including naming Mutual Indemnity Ltd. as beneficiary, bearing an expiry date of June 5, 2008, (v) the delivery outstanding letter of cash collateral, satisfactory to credit issued for the account of the Company by the Issuing Lender bearing LOC #S599096 in the amount of $1,523,000, naming Lumbermens Mutual Casualty Company as beneficiary, bearing an expiry date of June 5, 2008, (in its sole discretionvi) with the Borrower or such Lender to eliminate outstanding letter of credit issued for the Issuing Lender’s actual or potential fronting exposure with respect to account of the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which Company by the Issuing Lender has actual or potential fronting exposurebearing LOC # S599093 in the amount of $922,494, naming Reliance Insurance Company as it may elect in its sole discretion;
beneficiary, bearing an expiry of June 6, 2008, (vvii) such Letter the outstanding letter of Credit contains any provisions credit issued for automatic reinstatement the account of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed Company by the L/C Issuer and Issuing Lender bearing LC #S599259 in the Borrower when a Letter amount of Credit is issued (including any such agreement applicable to $11,122,500, naming The Travelers Indemnity Company as beneficiary, bearing an Existing Letter expiry of Credit)June 6, 2008, (iviii) the rules outstanding letter of credit issued for the account of the ISP shall apply to each standby Letter Company by the Issuing Lender bearing LC #S599337 in the amount of Credit$2,000,000, naming Wal-Mart Stores Inc. as beneficiary, bearing an expiry of June 6, 2008, (ix) the outstanding letter of credit issued for the account of the Company by the Issuing Lender bearing LC #S599095 in the amount of $1,500,000, naming Nova Information Systems, Inc. as beneficiary, bearing an expiry of June 30, 2008, and (iix) the rules outstanding letter of UCP 600 at credit issued for the time account of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the Company by the Issuing Lender bearing LC #S599260 in the amount of a Letter $596,000, naming Royal Indemnity Company on Behalf of Credit at any time shall be deemed to be the Dollar Equivalent itself and its Affiliated Companies as beneficiary, bearing an expiry of stated amount of such Letter of Credit in effect at such time; providedJune 6, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time2008.
Appears in 1 contract
Sources: Credit Agreement (Cpi 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), in reliance on the Issuing Lender agreements of the Committed Note Purchasers set forth in Sections 2.07 and 2.08, agrees to issue provide Liquidity Reserve Letters of Credit or other standby letters of credit requested by Issuer and agreed upon by Letter of Credit Provider in its sole discretion (together with the Liquidity Reserve Letters of Credit each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Borrower Issuer or its designee on any Business Day during at any time until the Letter of Credit Availability Period date that is thirty (30) Business Days prior to the Commitment Termination Date to be issued in accordance with Section 2.06(b) in such form as may be approved from time to time by the Issuing LenderLetter of Credit Provider; provided that the Issuing Lender Letter of Credit Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment Commitment, or (ii) the Available Revolving Commitment at such timeSeries 2026-1 Class A-1-V Outstanding Principal Amount would exceed the Series 2026-1 Class A-1-V Notes Maximum Principal Amount. Each Letter of Credit shall (ix) be denominated in Dollars, or in (y) have a face amount of at least $500,000 or, if less than $500,000, shall bear a reasonable administrative fee to be agreed upon by the discretion of Issuer and the Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent Provider and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiz) expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five ten (510) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except that (A) provided that, any Letter of Credit with a one-year term may provide for the renewal automatic extensions thereof for additional one-periods, each individually not to exceed one year periods (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after unless the Letter of Credit Maturity Date (Provider notifies each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least thirty (30) calendar days prior to an expiry the then-applicable expiration date not (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 five later than the Required Expiration Date so long as either (5x) Business Days prior the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the 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 Liquidity Reserve Letters of Credit, arrangements satisfactory to the Letter of Credit Maturity Date; providedProvider in its sole and absolute discretion have been made with the Letter of Credit Provider (and, however, that if the Letter of Credit Provider is not the L/C Issuer shall not permit any Issuing Bank with respect to such extension if (A) Letter of Credit, the L/C Issuer has determined Issuing Bank) pursuant to Section 4.04 such that it 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 2026-1 Liquidity Reserve Letter of Credit shall (1) name the Indenture Trustee for the benefit of the Noteholders and the other Secured Parties and the Servicer as the 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 2026-1 Liquidity Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Liquidity Reserve Account, pursuant to the Indenture; and (3) indicate by its terms that the proceeds in respect of drawings under such Series 2026-1 Liquidity Reserve Letter of Credit shall be paid directly into the Liquidity Reserve Account or otherwise used to pay Required 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 permittedobligated 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, obligation at such time to issue such Letter of Credit in its revised amended form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B2) it has received notice each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(which may be by telephone or a) On the terms and conditions set forth in writing) on or before the day that is seven Indenture and this Agreement (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in including Section 5.2 is not then satisfied7.03), and in each reliance on the covenants, representations and agreements set forth herein and therein, the Issuer shall issue and shall cause the Indenture Trustee to authenticate the Series 2026-1 Class A-1-V ▇/C Notes, which the Issuer shall deliver to the Letter of Credit Providers on the Series 2026-1 Closing Date; provided that, if such case directing Series 2026-1 Class L/C Note is an Uncertificated Note, the Indenture Trustee shall instead register it as described in the Indenture. Such Series 2026-1 Class A-1-V ▇/C Note shall be dated the Series 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 Series 2026-1 Class A-1-V ▇/C Notes shall be Variable Funding Notes payable in accordance with the Indenture and this Agreement. Each drawing on a Letter of Credit after the Series 2026-1 Closing Date will constitute a Borrowing in the outstanding principal amount evidenced by the Series 2026-1 Class 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 2026-1 Class 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 2026-1 Class A-1-V ▇/C Note and shall be deemed to be Series 2026-1 Class A-1-V Outstanding Principal Amounts (in the form of Series 2026-1 Class 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 2026-1 Class 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 2026-1 Class A-1-V ▇/C Note. Each Letter of Credit Provider and the Issuer agrees to promptly notify the Series 2026-1 Class A-1-V Administrative Agent and the Indenture Trustee of any such decreases for which notice to the Series 2026-1 Class A-1-V Administrative Agent is not to permit such extensionotherwise provided hereunder.
(b) The Issuer may (or shall cause the Manager on 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 (who shall promptly deliver a copy thereof to the relevant L/C Issuing Lender 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 2026-1 Class A-1-V Administrative 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 2026-1 Class A-1-V Administrative Agent (based, with respect to any portion of the Series 2026-1 Class A-1-V Outstanding L/C Subfacility Amount held by any Person other than the Series 2026-1 Class A-1-V Administrative Agent, solely on written notices received by the Series 2026-1 Class A-1-V Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series 2026-1 Class A-1-V Outstanding Principal Amount would not exceed the Series 2026-1 Class 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 2026-1 Class A-1-V Administrative Agent for purposes of determining whether the Letter of Credit Provider received such prior written confirmation from the Series 2026-1 Class 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 Issuer. The Letter of Credit Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the Series 2026-1 Class A-1-V Administrative Agent) promptly following the issuance thereof. Each Letter of Credit Provider shall promptly furnish to the Series 2026-1 Class 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 Issuer shall pay to the Series 2026-1 Class 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 Participation Fees” as defined in, and in accordance with the terms of, the Series 2026-1 Class A-1-V Notes Fee Letter, and subject to the Priority of Payments. In addition, the Issuer shall pay to (or reimburse) each Letter of Credit Provider, for its own account (or for the account of the applicable L/C Issuing 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 Issuing Bank), in each case as 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 2026-1 Closing Date and prior to the Series 2026-1 Class A-1-V Termination Date in accordance with the applicable provisions of the 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 Issuer may, upon at least three (3) Business Days’ notice to the Series 2026-1 Class 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 Issuer in writing and with the prior written consent of the Letter of Credit Provider and the Series 2026-1 Class A-1-V Administrative Agent, the Letter of Credit Provider may (but shall not at any time 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 2026-1 Class 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 Liquidity Reserve Letter of Credit. If any such Letter of Credit would be an Ineligible Liquidity Reserve Letter of Credit, a Person selected by the Issuer (at the reasonable expense of the Issuer) shall issue such Letter of Credit; provided that any Letter of Credit issued by such Person would not be an Ineligible 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 Issuer (at the reasonable expense of the Issuer), in each case in its capacity as the 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 Issuer in order to have any Letter of Credit issued by a Person selected by the Issuer pursuant to Section 2.06(f) to be a “Letter of Credit” that has been issued hereunder and such Person selected by the 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) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, 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 Lender 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 Lender Bank, as applicable, or any request or directive (whether which request or not having 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 Lender Bank, as applicable, shall prohibitprohibit the Letter of Credit Provider or the L/C Issuing Bank, or request that the Issuing Lender refrain fromas applicable, the issuance from issuing of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereofparticular.
(ci) Unless otherwise expressly agreed by the applicable Letter of Credit Provider or the L/C Issuer Issuing Bank, as applicable, and the Borrower Issuer when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit)issued, (i) the rules of the ISP “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, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of CreditCredit issued hereunder.
(dj) Unless otherwise specified 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 2026-1 Class A-1-V Outstanding Principal Amount on such date of determination, pursuant to the definition thereof.
(k) Notwithstanding anything in the contrary herein, the amount of a each Series 2026-1 Liquidity Reserve Letter of Credit at any time (including all drawings thereunder) shall be deemed subject to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; providedSections 4.05(b), however(c), that with respect to any Letter of Credit that(d), by its terms or the terms of any Issuer Document related thereto(e), provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent (g) and (j) of the stated amount of such Letter of Credit after giving effect to Indenture in all such increases, whether or not such maximum stated amount is in effect at such time.resp
Appears in 1 contract
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender L/C Provider (or its permitted assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.08 and 2.09, agrees to issue provide standby letters of credit credit, including Interest Reserve Letters of Credit (each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Borrower Issuer or its designee on any Business Day during the Letter of Credit Availability Period period commencing on the Series 2016-1 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 2.07(h) in such form as may be approved from time to time by the Issuing LenderL/C Provider; provided that the Issuing Lender L/C Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment or (ii) the Available Revolving Commitment at such timeSeries 2016-1 Class A-1 Outstanding Principal Amount would exceed the Series 2016-1 Class A-1 Notes Maximum Principal Amount. Each Letter of Credit shall (ix) be denominated in Dollars, or in the discretion (y) have a face amount of the Issuing Lenderat least $25,000 or, if less than $25,000, shall bear a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall reasonable administrative fee to be reported agreed upon by the Issuing Bank to Issuer and the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent Provider and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (ii) expire z)expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five ten (510) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except provided that (A) any Letter of Credit with a one-year term may provide for the automatic renewal thereof for additional one-periods, each individually not to exceed one year periods (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, unless the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to Provider notifies the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least thirty (30) calendar days prior to an expiry the then-applicable expiration date not (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 five later than the Required Expiration Date so long as either (5x) Business Days prior the Undrawn L/C Face Amount with respect to the such Letter of Credit Maturity Date; providedhas been fully cash collateralized by the 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, however, that arrangements satisfactory to the L/C Issuer Provider in its sole and absolute discretion have been made with the L/C Provider (and, if the 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 Interest Reserve Letter of Credit shall (1) name the Trustee, for the benefit of the Senior Noteholders or the Senior Subordinated Noteholders, as applicable, as the beneficiary thereof; (2) allow the Trustee to submit a notice of drawing in respect of such 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 Interest Reserve Letter of Credit shall be paid directly into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable. The L/C Provider shall not permit at any time be obligated to (I) provide any Letter of Credit hereunder if such extension 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 (A1) the L/C Issuer has determined that it would not be permitted, or Provider would have no obligation, obligation at such time to issue such Letter of Credit in its revised amended form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii2) the issuance beneficiary of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of does not accept the stated amount thereof after any drawing thereunder; or
(vi) subject proposed amendment to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(db) Unless otherwise specified hereinOn 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 Issuer shall issue and shall cause the Trustee to authenticate the Series 2016-1 Class A-1 L/C Note, which the Issuer shall deliver to the L/C Provider on the Series 2016-1 Closing Date. Such Series 2016-1 Class A-1 L/C Note shall be dated the Series 2016-1 Closing Date, shall be registered in the name of the L/C Provider or in such other name or nominee as the 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 the Series 2016-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and shall be duly authenticated in accordance with the provisions of the Indenture. Each issuance of a Letter of Credit at any time after the Series 2016-1 Closing Date will constitute an Increase in the outstanding principal amount evidenced by the Series 2016-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of 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 Dollar Equivalent Series 2016-1 Class A-1 L/C Note and shall be deemed to be Series 2016-1 Class A-1 Outstanding Principal Amounts for all purposes of stated amount this Agreement, the Indenture and the other Transaction Documents other than, in the case of such Undrawn L/C Face Amounts, for purposes of accrual of interest. Subject to the terms of this Agreement and the Series 2016-1 Supplement, each issuance of a Letter of Credit will constitute a Subfacility Increase in the outstanding principal amount evidenced by the Series 2016-1 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 Subfacility Decrease in the outstanding principal amount evidenced by the Series 2016-1 Class A-1 L/C Note. The L/C Provider and the Issuer agree to promptly notify the Administrative Agent and the Trustee of any such decreases for which notice to the Administrative Agent is not otherwise provided hereunder.
(c) The Issuer may (or shall cause the Manager on its behalf to) from time to time request that the L/C Provider provide a new Letter of Credit by delivering to the L/C Provider at its address for notices specified herein an Application therefor (in the form required by the applicable L/C Issuing Bank as notified to the Issuer by the L/C Provider), completed to the satisfaction of the 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 letters of credit set forth on Schedule IV hereto shall be deemed Letters of Credit provided and issued by the L/C Provider hereunder as of the Series 2016-1 Closing Date. Upon receipt of any completed Application, the L/C Provider will notify the Administrative Agent and the 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 2.07(a) and (i)) and, subject to the other conditions set forth herein and in the Series 2016-1 Supplement and upon receipt of written confirmation from the Administrative Agent (based, with respect to any portion of the Series 2016-1 Class A-1 Outstanding Subfacility Amount held by any Person other than the Administrative Agent, solely on written notices received by the Administrative Agent under this Agreement) that after giving effect at to the requested issuance, the Series 2016-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2016-1 Class A-1 Notes Maximum Principal Amount (provided that the 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 Administrative Agent for purposes of determining whether the L/C Provider received such time; provided, however, that prior written confirmation from the Administrative Agent with respect to any Letter of Credit), the 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 thatrequested thereby (but in no event shall the L/C Provider be required to provide any Letter of Credit earlier than three Business Days after its receipt of the Application therefor and all such other certificates, by its terms or the terms of any Issuer Document related documents and other papers and information relating thereto, provides for one or more automatic increases as provided in Section 2.07(a)) by issuing the stated amount thereof, the amount original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the L/C Provider and the Issuer. The L/C Provider shall be deemed to be the maximum Dollar Equivalent of the stated amount furnish a copy of such Letter of Credit to the Manager (with a copy to the Administrative Agent) promptly following the issuance thereof. The L/C Provider shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof).
(d) The Issuer shall pay ratably to the Committed Note Purchasers the L/C Quarterly Fees (as defined in the Series 2016-1 Class A-1 Notes Fee Letter, the “L/C Quarterly Fees”) in accordance with the terms of the Series 2016-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments.
(e) [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.
(g) The Issuer may, upon at least three (3) Business Days’ notice to the Administrative Agent and the L/C Provider, effect a permanent reduction in the L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Issuer in writing and with the prior written consent of the L/C Provider and the Administrative Agent, the 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 2016-1 Class A-1 Note Advances, the Swingline Commitment and the L/C Commitment does not exceed the aggregate amount of the Commitments.
(h) The L/C Provider shall satisfy its obligations under this Section 2.07 with respect to all providing any Letter of Credit hereunder by issuing such increasesLetter of Credit itself or through an Affiliate if the L/C Issuing Bank Rating Test is satisfied with respect to such Affiliate and the issuance of such Letter of Credit. If the L/C Issuing Bank Rating Test is not satisfied with respect to such Affiliate and the issuance of such Letter of Credit, whether a Person selected by the Issuer (at the expense of the L/C Provider) shall issue such Letter of Credit; provided that such Person and issuance of such Letter of Credit satisfies the L/C Issuing Bank Rating Test (the L/C Provider (or such Affiliate of the L/C Provider) in its capacity as the issuer of such Letter of Credit or such other Person selected by the Issuer (at the expense of the 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, (i) a short-term certificate of deposit rating of not less than “A-1” (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 maximum stated amount is 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 Issuer in effect at order to have any letter of credit issued by a Person selected by the Issuer pursuant to this Section 2.07(h) or Section 5.17 of the Base Indenture be a “Letter of Credit” that has been issued hereunder and such timePerson selected by the Issuer be an “L/C Issuing Bank”.
Appears in 1 contract
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender Lender, in reliance on the agreements of the other Revolving Lenders set forth in Section 3.4(a), agrees to issue letters of credit (“Letters of Credit”) (x) upon the request of the U.S. Borrower, for the account of the Borrower U.S. Borrower, any Domestic Subsidiary or any Canadian Subsidiary, in each case on any Business Day during the Letter of Credit Availability Revolving Commitment Period in such form as may be approved from time to time by the Issuing Lender; provided that the Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, (ii) the L/C Obligations in respect of Letters of Credit issued by it would exceed $20,000,000, (iii) the aggregate amount of the Available Revolving Commitments would be less than zero or (iv) with respect to any Lender, the sum of (x) the Swingline Exposure of such Lender (in its capacity as the Swingline Lender (if applicable) and a Revolving Lender), (y) the aggregate principal amount of the Dollar Equivalent of the outstanding Revolving Loans made by such Lender and (z) the L/C Exposure of such Lender would exceed either the Total L/C Commitment or the Available its Revolving Commitment at such timethen in effect. Each Letter of Credit shall (i) (x) be denominated in Dollars, 509265-2072-11662-ACTIVE.44337519 Dollars or in the discretion of the Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in an Acceptable Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiy) expire no later than the earlier of (x1) the first anniversary of its date of issuance and (y2) the date that is five (5) Business Days prior to the Letter of Credit Maturity Revolving Termination Date; except , provided that (A) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y2) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of ); provided further that any such renewal and (B) a Letter of Credit may (notwithstanding clause (2) or the immediately preceding proviso above) expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to Revolving Termination Date so long as the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of has approved such Letter of Credit plus all interest, fees, expiration date and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless cash collateralized or otherwise directed by the L/C Issuer, the Borrower shall not be required to make backstopped in a specific request manner reasonably acceptable to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit Issuing Lender at any time to an expiry date not later than the date that is five (5) least eight Business Days prior to the Letter of Credit Maturity Revolving Termination Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
L/C Commitment. (a) Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the Issuing Lender agreements of the other Revolving Lenders set forth in Section 3.4(a), agrees to issue standby letters of credit and to the extent agreed to by an Issuing Lender, bank guarantees and commercial letters of credit providing for the payment of cash upon the honoring of a presentation thereunder (collectively, with the letters of credit existing under the Original Credit Facility on the date hereof and described on Schedule 1.1-3, “Letters of Credit”) for the account of the Initial Borrower or the account of any of its Restricted Subsidiaries (provided that the Initial Borrower shall be an applicant, and be fully and unconditionally liable, with respect to each Letter of Credit issued for the account of a Restricted Subsidiary) on any Business Day during prior to the Letter of Credit Availability Period date that is thirty (30) days prior to the Revolving Termination Date in such form as may be approved from time to time by the Issuing LenderLenders; provided that the no Issuing Lender shall have no any obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Exposure Obligations -117- 13452822.12 |US-DOCS\87149920.12138026742.9|| 27955694.v2 would exceed either the Total L/C Commitment or Commitment, (ii) the aggregate amount of the Available Revolving Commitment at Commitments would be less than zero or (iii) the L/C Obligation of such timeIssuing Lender would exceed its L/C Sublimit. Each Letter of Credit shall (i) be denominated in Dollars, or in (ii) have a stated amount acceptable to the discretion of the relevant Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiiii) expire no later than the earlier of (x) the first anniversary of its date of issuance issuance, or such longer period as is reasonably acceptable to the Issuing Lender, and (y) the date that is five three (53) Business Days prior to the Letter of Credit Maturity Revolving Termination Date; except , provided that (A) any Letter of Credit with a one-year term the consent of the applicable Issuing Lender may provide for the renewal or extension thereof for additional one-year periods or such longer period of time as may be agreed by the Issuing Lender (which shall in no event extend beyond the date referred to in clause (y) above) subject , except to the Borrower’s satisfaction extent the L/C Obligations under such Letter of Credit have been Cash Collateralized); provided, further, that the Issuing Lenders shall not renew or extend any such Letter of Credit if it has received written notice (or otherwise has knowledge) that an Event of Default has occurred and is continuing or any of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days are not satisfied prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% date of the Dollar Equivalent of the face amount of decision to renew or extend such Letter of Credit plus and (iv) be otherwise reasonably acceptable in all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral respects to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issuedLenders. Unless otherwise directed by the L/C IssuerIssuing Lenders, the Borrower Representative shall not be required to make a specific request to the L/C Issuer an Issuing Lender for any such extension. Once an Auto-Extension any Letter of Credit has been issuedissued that may be extended automatically pursuant to the foregoing, the Revolving Lenders shall be deemed to have authorized (but may not require) the L/C Issuer Issuing Lenders to permit the extension of such Letter of Credit at any time Credit, including to an expiry date not later than the date that is five (5) Business Days prior to the Letter Revolving Termination Date. For the avoidance of doubt, the letters of credit identified on Schedule 1.1-3 shall be deemed Letters of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) for all purposes under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extensionthis Agreement.
(b) The No Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
if (i) such issuance would conflict with, or cause the such Issuing Lender or any L/C Lender Participant to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, Law or (ii) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the such Issuing Lender from issuing the such Letter of Credit, or any law Requirement of Law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the such Issuing Lender shall prohibit, or request that the such Issuing Lender refrain from, the issuance of letters of credit generally or the such Letter of Credit in particular or shall impose upon the such Issuing Lender with respect to the such Letter of Credit any restriction, reserve or capital requirement (for which the such Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the such Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the such Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
L/C Commitment. (a) Prior to the Closing Date, the Existing Issuing Lender has issued the Existing Letters of Credit which, from and after the Closing Date, shall constitute Letters of Credit hereunder. Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the Issuing Lender agreements of the other Revolving Credit Lenders set forth in Section 3.4(a), agrees to issue letters of credit (the letters of credit issued on and after the Closing Date pursuant to this Section 3, together with the Existing Letters of Credit, collectively, the “Letters of Credit”) for the account of the Borrower on any Business Day during the Letter of Revolving Credit Availability Commitment Period in such form as may be approved from time to time by the such Issuing Lender; provided provided, that the no Issuing Lender shall have no any obligation to issue any Letter of Credit if, after giving effect to such issuance, the L/C Exposure would exceed either the Total L/C Commitment or aggregate amount of the Available Revolving Commitment Credit Commitments at such timetime would be less than zero. Each Letter of Credit shall (i) be denominated in Dollars, Dollars or in the discretion of the Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; euro and (ii) except as otherwise provided in Annex B with respect to certain Existing Letters of Credit, expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that which is five (5) Business Days prior to the Letter of Scheduled Revolving Credit Maturity Termination Date; except provided that (Ai) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal ), and (Bii) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the no Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at be under any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree obligation to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter Euro) if the obligation of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required Lender to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Revolving Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that Euro Loans is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, suspended at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject pursuant to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof2.17 or Section 2.22.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
Sources: Credit Agreement (Tronox Inc)
L/C Commitment. (a) As of the Closing Date, the existing letters of credit set forth on Schedule 5.1 shall be deemed Letters of Credit hereunder. Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the Issuing Lender agreements of the other Lenders set forth in Section 5.4(a), agrees to issue new letters of credit (“Letters of Credit”) for the account of the relevant Borrower on any Business Day during from the Letter of Credit Availability Period Closing Date until the date that is ten Business Days prior to the Maturity Date in such form as may be approved from time to time by the such Issuing Lender; provided that the such Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment or (ii) the Available aggregate amount of the Utilized Revolving Commitment at such timeCommitments would be greater than the Revolving Loan Commitments. Each Letter of Credit shall (i) be denominated in Dollars, or in the discretion (ii) have a face amount of the Issuing Lender, a Foreign Currency; provided that at least $1,000,000 (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported unless otherwise agreed by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the applicable Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; except that (A) any Letter provided, that, if one or more Letters of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the any time of any such renewal and (B) a Letter of Credit may expire on a have an expiry date that is up to 365 days after later than the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the relevant Borrower provides shall, not later than (i) five days preceding the Maturity Date, deposit in a cash collateral account established with the Administrative Agent, on terms and conditions satisfactory to the Issuing Lender cash collateral in Administrative Agent, an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the L/C Obligations relating with respect to such Letter Letters of Credit; provided that , if the Dollar Equivalent of relevant Borrower’s Rating in effect is at least BBB-as published by S&P, is at least Baa3 as published by ▇▇▇▇▇’▇ and is at least BBB- as published by Fitch or (ii) fifteen days preceding the aggregate face Maturity Date, deposit in a cash collateral account established with the Administrative Agent an amount of all Holdover equal to the L/C Obligations with respect to such Letters of Credit shall not exceed $50,000,000 at any timeif the relevant Borrower’s Rating in effect is lower than BBB- as published by S&P, is lower than Baa3 as published by ▇▇▇▇▇’▇ or is lower than BBB- as published by Fitch; and provided, further, that following the Letter obligations under this Section 5 in respect of such Letters of Credit of (i) the Borrowers shall survive the Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent Date and shall remain in effect until no such Letters of the face amount of any Foreign Currency L/C at any time andCredit remain outstanding and (ii) each Lender shall be reinstated, to the extent that any such cash collateral, the application thereof or reimbursement in respect thereof is required to be returned to the Borrowers by an Issuing Lender after the Maturity Date. Amounts held in such cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders account shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, held and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed applied by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, manner and for the purposes set forth in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a10.2(c), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
Sources: Revolving Credit Agreement (Dominion Resources Inc /Va/)
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender L/C Provider (or its permitted assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.08 and 2.09, agrees to issue provide standby letters of credit credit, including Interest Reserve Letters of Credit (each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Borrower any Co-Issuer or its designee on any Business Day during the Letter of Credit Availability Period 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 2.07(h) in such form as may be approved from time to time by the Issuing LenderL/C Provider; provided that the Issuing Lender L/C Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment or (ii) the Available Revolving Commitment at such timeSeries 2017-1 Class A-1 Outstanding Principal Amount would exceed the Series 2017-1 Class A-1 Notes Maximum Principal Amount. Each Letter of Credit shall (ix) be denominated in Dollars, or in the discretion (y) have a face amount of the Issuing Lenderat least $25,000 or, if less than $25,000, shall bear a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall reasonable administrative fee to be reported agreed upon by the Issuing Bank to Co-Issuers and the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent Provider and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (ii) expire z)expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five ten (510) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except provided that (A) any Letter of Credit with a one-year term may provide for the automatic renewal thereof for additional one-periods, each individually not to exceed one year periods (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, unless the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in Provider notifies each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least thirty (30) calendar days prior to an expiry the then-applicable expiration date not (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 five later than the Required Expiration Date so long as either (5x) Business Days prior the Undrawn L/C Face Amount with respect to the such Letter of Credit Maturity Date; providedhas 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, however, that arrangements satisfactory to the L/C Issuer Provider in its sole and absolute discretion have been made with the L/C Provider (and, if the 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 Interest Reserve Letter of Credit shall (1) name each of (A) the Trustee, for the benefit of the Senior Noteholders or the Senior Subordinated Noteholders, as applicable, and (B) the Control Party, as the beneficiaries thereof; (2) allow the Trustee or the Control Party to submit a notice of drawing in respect of such 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 Interest Reserve Letter of Credit shall be paid directly into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable. The L/C Provider shall not permit at any time be obligated to (I) provide any Letter of Credit hereunder if such extension 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 (A1) the L/C Issuer has determined that it would not be permitted, or Provider would have no obligation, obligation at such time to issue such Letter of Credit in its revised amended form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B2) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more each beneficiary of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of does not accept the stated amount thereof after any drawing thereunder; or
(vi) subject proposed amendment to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(db) Unless otherwise specified hereinOn 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 Trustee to authenticate the Series 2017-1 Class A-1 L/C Note, which the Co-Issuers shall deliver to the L/C Provider on the Series 2017-1 Closing Date. Such Series 2017-1 Class A-1 L/C Note shall be dated the Series 2017-1 Closing Date, shall be registered in the name of the L/C Provider or in such other name or nominee as the 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 the Series 2017-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and shall be duly authenticated in accordance with the provisions of the Indenture. Each issuance of a Letter of Credit at any time after the Series 2017-1 Closing Date will constitute an Increase in the outstanding principal amount evidenced by the Series 2017-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of 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 Dollar Equivalent Series 2017-1 Class A-1 L/C Note and shall be deemed to be Series 2017-1 Class A-1 Outstanding Principal Amounts for all purposes of stated amount this Agreement, the Indenture and the other Transaction Documents other than, in the case of such Undrawn L/C Face Amounts, for purposes of accrual of interest. Subject to the terms of this Agreement and the Series 2017-1 Supplement, each issuance of a Letter of Credit will constitute a Subfacility Increase in the outstanding principal amount evidenced by the Series 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 Subfacility Decrease in the outstanding principal amount evidenced by the Series 2017-1 Class A-1 L/C Note. The L/C Provider and the Co-Issuers agree to promptly notify the Administrative Agents and the Trustee of any such decreases for which notice to the Administrative Agents is not otherwise provided hereunder.
(c) The Co-Issuers may (or shall cause the Manager on its behalf to) from time to time request that the L/C Provider provide a new Letter of Credit by delivering to the L/C Provider at its address for notices specified herein an Application therefor (in the form required by the applicable L/C Issuing Bank as notified to the Co-Issuers by the L/C Provider), completed to the satisfaction of the 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. Upon receipt of any completed Application, the L/C Provider will notify the Administrative Agents and the 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 2.07(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 Funding Administrative Agent (based, with respect to any portion of the Series 2017-1 Class A-1 Outstanding Subfacility Amount held by any Person other than the Funding Administrative Agent, solely on written notices received by the Funding Administrative Agent under this Agreement) that after giving effect at to the requested issuance, the Series 2017-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2017-1 Class A-1 Notes Maximum Principal Amount (provided that the 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 Funding Administrative Agent for purposes of determining whether the L/C Provider received such time; provided, however, that prior written confirmation from the Funding Administrative Agent with respect to any Letter of Credit), the 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 thatrequested thereby (but in no event shall the L/C Provider be required to provide any Letter of Credit earlier than three Business Days after its receipt of the Application therefor and all such other certificates, by its terms or the terms of any Issuer Document related documents and other papers and information relating thereto, provides for one or more automatic increases as provided in Section 2.07(a)) by issuing the stated amount thereof, the amount original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the L/C Provider and the Co-Issuers. The L/C Provider shall be deemed to be the maximum Dollar Equivalent of the stated amount furnish a copy of such Letter of Credit to the Manager (with a copy to the Administrative Agents) promptly following the issuance thereof. The L/C Provider shall promptly furnish to the Funding Administrative Agent, which shall in turn promptly furnish to the other Administrative Agent, the Funding Agents, the Investors, the Control Party and the Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof).
(d) The Co-Issuers shall pay to the L/C Provider the L/C Quarterly Fees (as defined in the Series 2017-1 Class A-1 Notes Fee Letter, the “L/C Quarterly Fees”) in accordance with the terms of the Series 2017-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments.
(e) [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.
(g) The Co-Issuers may, upon at least three (3) Business Days’ notice to the Administrative Agents and the L/C Provider, effect a permanent reduction in the 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 L/C Provider and the Administrative Agents, the 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 2017-1 Class A-1 Note Advances, the Swingline Commitment and the L/C Commitment does not exceed the aggregate amount of the Commitments.
(h) The L/C Provider shall satisfy its obligations under this Section 2.07 with respect to all providing any Letter of Credit hereunder by issuing such increasesLetter of Credit itself or through an Affiliate if the L/C Issuing Bank Rating Test is satisfied with respect to such Affiliate and the issuance of such Letter of Credit. If the L/C Issuing Bank Rating Test is not satisfied with respect to such Affiliate and the issuance of such Letter of Credit, whether a Person selected by the Co-Issuers (at the expense of the L/C Provider) shall issue such Letter of Credit; provided that such Person and issuance of such Letter of Credit satisfies the L/C Issuing Bank Rating Test (the L/C Provider (or such Affiliate of the L/C Provider) in its capacity as the issuer of such Letter of Credit or such other Person selected by the Co-Issuers (at the expense of the 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, (i) 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 maximum stated amount is 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 effect at order to have any letter of credit issued by a Person selected by the Co-Issuers pursuant to this Section 2.07(h) or Section 5.17 of the Base Indenture be a “Letter of Credit” that has been issued hereunder and such timePerson selected by the Co-Issuers be an “L/C Issuing Bank”.
Appears in 1 contract
Sources: Class a 1 Note Purchase Agreement (Jay Merger Sub, Inc.)
L/C Commitment. (a) Subject to the terms and conditions hereof, the Administrative Agent, in reliance on the agreements of the other Lenders set forth in Section 3.4(a), agrees, in its sole discretion, to arrange for the Issuing Lender agrees Bank to issue letters of credit (“Letters of Credit”) Credit for the account of the Borrower Borrowers on any Business Day during from the Letter of Credit Availability Period Closing Date through but not including five (5) Business Days prior to the Maturity Date in such form as may be approved from time to time by the such Issuing LenderBank; provided provided, that the Issuing Lender Administrative Agent shall have no obligation to issue arrange for the issuance of any such Letter of Credit if, after giving effect to such issuance, (a) the L/C Exposure Obligations would exceed either the Total L/C Commitment, (b) the aggregate principal amount of outstanding Revolving Credit Loans, plus any amounts remaining outstanding or unpaid with respect to the Pre-Petition Obligations, plus the aggregate amount of L/C Obligations would exceed the lesser of (x) the Revolving Credit Commitment and (y) the Borrowing Base Amount, or (c) following the Available Revolving Commitment at such timeoccurrence of an L/C Collateral Event, the L/C Cash Collateral as reflected in the L/C Cash Collateral Account is less than an amount equal to 105% of the L/C Obligations. Each Letter of Credit shall (i) be denominated in Dollars, or Dollars in the discretion of the Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face minimum amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and 5,000, (ii) expire no later than the earlier be a standby or commercial letter of (x) the first anniversary of its date of issuance and (y) the date that is five (5) Business Days prior credit issued to the Letter of Credit Maturity Date; except that (A) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time support obligations of any such renewal Credit Party, contingent or otherwise, incurred in the ordinary course of business (including bid, performance, surety and similar bonds or obligations), (Biii) a Letter of Credit may expire on a date that is up to 365 days no more than six (6) months after the Letter date of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on issuance or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount last renewal of such Letter of Credit plus all interest, fees, (it being understood and costs due or agreed that such limitation shall not be construed to become due in connection therewith prohibit the issuance by such Issuing Bank of “evergreen” Letters of Credit providing for automatic extension for periods not exceeding one (as estimated by the Issuing Lender in its sole discretion1) month), which expiry date (including any such date that could automatically be extended pursuant to secure all of the Obligations relating to such an “evergreen” provision contained in a Letter of Credit; provided that ) shall be no later than the Dollar Equivalent fifth (5th) Business Day prior to the date specified in clause (a) of the aggregate face amount definition of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; the term “Maturity Date” and provided(iv) be subject to the Uniform Customs and/or ISP98, further, that following as set forth in the Letter of Credit Maturity Date, the Application or as determined by such Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that not inconsistent therewith, the cash collateral previously provided by the Borrower is equal to less than 105% laws of the Dollar Equivalent State of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfallNew York. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower The Administrative Agent shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue arrange for the issuance of any Letter of Credit if:
(i) hereunder if such issuance would conflict with, or cause the such Issuing Lender Bank or any L/C Lender Participant to exceed any limits imposed by, any applicable Requirement Applicable Law. References herein to “issue” and derivations thereof with respect to Letters of Law, including, without limitation, any order, judgment Credit shall also include extensions or decree modifications of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter outstanding Letters of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereofcontext otherwise requires.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender L/C Provider (or its permitted assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.08 and 2.09, agrees to issue provide standby letters of credit credit, including Interest Reserve Letters of Credit (each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Borrower Issuer on any Business Day during the Letter of Credit Availability Period period commencing on the Series 2019-3 Closing Date and ending on the date that is ten Business Days prior to the Commitment Termination Date to be issued in accordance with Section 2.07(h) in such form as may be approved from time to time by the Issuing LenderL/C Provider; provided that the Issuing Lender L/C Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment, (ii) the Series 2019-3 Class A-1 Outstanding Principal Amount would exceed the Series 2019-3 Class A-1 Notes Maximum Principal Amount or (iii) the Series 2019-3 Class A-1 Outstanding Principal Amount attributable to the L/C Provider (in its capacity as Committed Note Purchaser and L/C Provider) would exceed its Commitment or the Available Revolving Commitment at such timeAmount. Each Letter of Credit shall (ix) be denominated in Dollars, or in the discretion (y) have a face amount of the Issuing Lender, a Foreign Currency; provided that at least $100,000 (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported unless otherwise agreed by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7Provider, together with a reasonable administrative fee to be agreed upon) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiz) expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five ten (510) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except provided that (A) any Letter of Credit with a one-year term may provide for the automatic renewal thereof for additional one-periods, each individually not to exceed one year periods (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, unless the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in Provider notifies each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least thirty (30) calendar days prior to an expiry the then-applicable expiration date not (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 five later than the Required Expiration Date so long as either (5x) Business Days prior the Undrawn L/C Face Amount with respect to the such Letter of Credit Maturity Date; providedhas been fully cash collateralized by the 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, however, that arrangements satisfactory to the L/C Issuer Provider in its sole and absolute discretion have been made with the L/C Provider (and, if the 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 Interest Reserve Letter of Credit shall (1) name each of (A) the 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 Trustee or the Control Party to submit a notice of drawing in respect of such 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 Interest Reserve Letter of Credit shall be paid directly into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable, or such other Account, as permitted pursuant to the terms of the Indenture. The L/C Provider shall not permit at any time be obligated to (I) provide any Letter of Credit hereunder if such extension 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 (A1) the L/C Issuer has determined that it would not be permitted, or Provider would have no obligation, obligation at such time to issue such Letter of Credit in its revised amended form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B2) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more each beneficiary of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of does not accept the stated amount thereof after any drawing thereunder; or
(vi) subject proposed amendment to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(db) Unless otherwise specified hereinOn 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 Issuer shall issue and shall cause the Trustee to authenticate the initial Series 2019-3 Class A-1 L/C Note, which the Issuer shall deliver to the L/C Provider on the Series 2019-3 Closing Date. Such initial Series 2019-3 Class A-1 L/C Note shall be dated the Series 2019-3 Closing Date, shall be registered in the name of the L/C Provider or in such other name or nominee as the 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 the Series 2019-3 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and shall be duly authenticated in accordance with the provisions of the Indenture. Each issuance of a Letter of Credit at any time after the Series 2019-3 Closing Date will constitute an Increase in the outstanding principal amount evidenced by the Series 2019-3 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of 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 Dollar Equivalent Series 2019-3 Class A-1 L/C Note and shall be deemed to be Series 2019-3 Class A-1 Outstanding Principal Amounts for all purposes of stated amount this Agreement, the Indenture and the other Transaction Documents other than, in the case of such Undrawn L/C Face Amounts, for purposes of accrual of interest. Subject to the terms of this Agreement and the Series 2019-3 Supplement, each issuance of a Letter of Credit will constitute a Subfacility Increase in the outstanding principal amount evidenced by the Series 2019-3 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 Subfacility Decrease in the outstanding principal amount evidenced by the Series 2019-3 Class A-1 L/C Note. The L/C Provider and the Issuer agree to promptly notify the Administrative Agent and the Trustee of any such decreases for which notice to the Administrative Agent is not otherwise provided hereunder.
(c) The Issuer may (or shall cause the Manager on its behalf to) from time to time request that the L/C Provider provide a new Letter of Credit by delivering to the L/C Provider at its address for notices specified herein an Application therefor (in the form required by the applicable L/C Issuing Bank as notified to the Issuer by the L/C Provider), completed to the satisfaction of the 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 hereunder as of the Series 2019-3 Closing Date. Upon receipt of any completed Application, the L/C Provider will notify the Administrative Agent and the 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 2.07(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 Administrative Agent (based, with respect to any portion of the Series 2019-3 Class A-1 Outstanding Subfacility Amount held by any Person other than the Administrative Agent, solely on written notices received by the Administrative Agent under this Agreement) that after giving effect at to the requested issuance, the Series 2019-3 Class A-1 Outstanding Principal Amount would not exceed the Series 2019-3 Class A-1 Notes Maximum Principal Amount (provided that the 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 Administrative Agent for purposes of determining whether the L/C Provider received such time; provided, however, that prior written confirmation from the Administrative Agent with respect to any Letter of Credit), the 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 thatrequested thereby (but in no event shall the L/C Provider be required to provide any Letter of Credit earlier than three Business Days after its receipt of the Application therefor and all such other certificates, by its terms or the terms of any Issuer Document related documents and other papers and information relating thereto, provides for one or more automatic increases as provided in Section 2.07(a)) by issuing the stated amount thereof, the amount original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the L/C Provider and the Issuer. The L/C Provider shall be deemed to be the maximum Dollar Equivalent of the stated amount furnish a copy of such Letter of Credit to the Manager (with a copy to the Administrative Agent) promptly following the issuance thereof. The L/C Provider shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof).
(d) The Issuer shall pay to the L/C Provider the L/C Quarterly Fees (as defined in the Series 2019-3 Class A-1 Notes Fee Letter, the “L/C Quarterly Fees”) in accordance with the terms of the Series 2019-3 Class A-1 Notes Fee Letter and subject to the Priority of Payments.
(e) [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.
(g) The Issuer may, upon at least three (3) Business Days’ notice to the Administrative Agent and the L/C Provider, effect a permanent reduction in the L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Issuer in writing and with the prior written consent of the L/C Provider and the Administrative Agent, the 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 Series 2019-3 Class A-1 Outstanding Principal Amounts, the Swingline Commitment and the L/C Commitment does not exceed the aggregate Commitment Amounts.
(h) The L/C Provider shall satisfy its obligations under this Section 2.07 with respect to all providing any Letter of Credit hereunder by issuing such increasesLetter of Credit itself or through an Affiliate if the L/C Issuing Bank Rating Test is satisfied with respect to such Affiliate. If the L/C Issuing Bank Rating Test is not satisfied with respect to such Affiliate, whether or not a Person selected by the Issuer (at the expense of the L/C Provider) shall issue such maximum stated amount is in effect at Letter of Credit; provided that such time.Person and issuance 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, the Issuing Lender L/C Provider (or its permitted assigns pursuant to Section 9.17), in reliance on the agreements of the Committed Note Purchasers set forth in Sections 2.08 and 2.09, agrees to issue provide standby letters of credit credit, including Interest Reserve Letters of Credit (each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Borrower Issuer or its designee on any Business Day during the Letter of Credit Availability Period 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 2.07(h) in such form as may be approved from time to time by the Issuing LenderL/C Provider; provided that the Issuing Lender L/C Provider shall have no obligation or right to issue provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Exposure Obligations would exceed either the Total L/C Commitment, (ii) the Series 2018-1 Class A-1 Outstanding Principal Amount would exceed the Series 2018-1 Class A-1 Notes Maximum Principal Amount or (iii) the Series 2018-1 Class A-1 Outstanding Principal Amount attributable to the L/C Provider (in its capacity as Committed Note Purchaser and L/C Provider) would exceed its Commitment or the Available Revolving Commitment at such timeAmount. Each Letter of Credit shall (ix) be denominated in Dollars, or in the discretion (y) have a face amount of the Issuing Lenderat least $25,000 or, if less than $25,000, shall bear a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall reasonable administrative fee to be reported agreed upon by the Issuing Bank to Issuer and the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent Provider and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (iiz) expire no later than the earlier of (xA) the first anniversary of its date of issuance and (yB) the date that is five ten (510) Business Days prior to the Letter of Credit Maturity Commitment Termination Date (the “Required Expiration Date”); except provided that (A) any Letter of Credit with a one-year term may provide for the automatic renewal thereof for additional one-periods, each individually not to exceed one year periods (which shall in no event extend beyond the date referred to in clause (yRequired Expiration Date) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, unless the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in Provider notifies each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time least thirty (30) calendar days prior to an expiry the then-applicable expiration date not (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 five later than the Required Expiration Date so long as either (5x) Business Days prior the Undrawn L/C Face Amount with respect to the such Letter of Credit Maturity Date; providedhas been fully cash collateralized by the 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, however, that arrangements satisfactory to the L/C Issuer Provider in its sole and absolute discretion have been made with the L/C Provider (and, if the 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. The L/C Provider shall not permit at any time be obligated to (I) provide any Letter of Credit hereunder if such extension 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 (A1) the L/C Issuer has determined that it would not be permitted, or Provider would have no obligation, obligation at such time to issue such Letter of Credit in its revised amended form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B2) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more each beneficiary of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of does not accept the stated amount thereof after any drawing thereunder; or
(vi) subject proposed amendment to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(db) Unless otherwise specified hereinOn 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 Issuer shall issue and shall cause the Trustee to authenticate the Series 2018-1 Class A-1 L/C Notes, which the Issuer shall deliver to the L/C Provider on the Series 2018-1 Closing Date. Such Series 2018-1 Class A-1 L/C Note shall be dated the Series 2018-1 Closing Date, shall be registered in the name of the L/C Provider or in such other name or nominee as the 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 the Series 2018-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and shall be duly authenticated in accordance with the provisions of the Indenture. Each issuance of a Letter of Credit at any time after the Series 2018-1 Closing Date will constitute an Increase in the outstanding principal amount evidenced by the Series 2018-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of 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 Dollar Equivalent Series 2018-1 Class A-1 L/C Note and shall be deemed to be Series 2018-1 Class A-1 Outstanding Principal Amounts for all purposes of stated amount this Agreement, the Indenture and the other Transaction Documents other than, in the case of such Undrawn L/C Face Amounts, for purposes of accrual of interest. Subject to the terms of this Agreement and the Series 2018-1 Supplement, each issuance of a Letter of Credit will constitute a Subfacility Increase in the outstanding principal amount evidenced by the Series 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 Subfacility Decrease in the outstanding principal amount evidenced by the Series 2018-1 Class A-1 L/C Note. The L/C Provider and the Issuer agree to promptly notify the Administrative Agent and the Trustee of any such decreases for which notice to the Administrative Agent is not otherwise provided hereunder.
(c) The Issuer may (or shall cause the Manager on its behalf to) from time to time request that the L/C Provider provide a new Letter of Credit by delivering to the L/C Provider at its address for notices specified herein an application therefor (in the form required by the applicable L/C Issuing Bank as notified to the Issuer by the L/C Provider) (an “Application”), completed to the satisfaction of the 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. Upon receipt of any completed Application, the L/C Provider will notify the Administrative Agent and the 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 2.07(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 Administrative Agent (based, with respect to any portion of the Series 2018-1 Class A-1 Outstanding Subfacility Amount held by any Person other than the Administrative Agent, solely on written notices received by the Administrative Agent under this Agreement) that after giving effect at to the requested issuance, the Series 2018-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2018-1 Class A-1 Notes Maximum Principal Amount (provided that the 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 Administrative Agent for purposes of determining whether the L/C Provider received such time; provided, however, that prior written confirmation from the Administrative Agent with respect to any Letter of Credit), the 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 thatrequested thereby (but in no event shall the L/C Provider be required to provide any Letter of Credit earlier than three Business Days after its receipt of the Application therefor and all such other certificates, by its terms or the terms of any Issuer Document related documents and other papers and information relating thereto, provides for one or more automatic increases as provided in Section 2.07(a)) by issuing the stated amount thereof, the amount original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the L/C Provider and the Issuer. The L/C Provider shall be deemed to be the maximum Dollar Equivalent of the stated amount furnish a copy of such Letter of Credit to the Manager (with a copy to the Administrative Agent) promptly following the issuance thereof. The L/C Provider shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof).
(d) The Issuer shall pay to the L/C Provider the L/C Quarterly Fees (as defined in the Series 2018-1 Class A-1 Notes Fee Letter, the “L/C Quarterly Fees”) in accordance with the terms of the Series 2018-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments.
(e) [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.
(g) The Issuer may, upon at least three (3) Business Days’ notice to the Administrative Agent and the L/C Provider, effect a permanent reduction in the L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Issuer in writing and with the prior written consent of the L/C Provider and the Administrative Agent, the 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 2018-1 Class A-1 Note Advances, the Swingline Commitment and the L/C Commitment does not exceed the aggregate amount of the Commitments.
(h) The L/C Provider shall satisfy its obligations under this Section 2.07 with respect to all providing any Letter of Credit hereunder by issuing such increasesLetter of Credit itself or through an Affiliate if the L/C Issuing Bank Rating Test is satisfied with respect to such Affiliate, whether and the issuance of such Letter of Credit. If the L/C Issuing Bank Rating Test is not satisfied with respect to such Affiliate, and the issuance of such Letter of Credit, a Person selected by the Issuer (at the expense of the L/C Provider) shall issue such Letter of Credit; provided that such Person and issuance of such Letter of Credit satisfies the L/C Issuing Bank Rating Test (the L/C Provider (or such Affiliate of the L/C Provider) or such other Person selected by the Issuer (at the expense of the L/C Provider), in each case in its capacity as the 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, (i) 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 maximum stated amount is 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 Issuer in effect at order to have any letter of credit issued by a Person selected by the Issuer pursuant to this Section 2.07(h) or Section 5.17 of the Base Indenture be a “Letter of Credit” that has been issued hereunder and such timePerson selected by the Issuer be an “L/C Issuing Bank”. If any Letter of Credit issued by an L/C Provider 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, 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 satisfies the L/C Issuing Bank 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.
Appears in 1 contract
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender agrees Lenders, upon notice to the Administrative Agent, and in reliance on the agreements of the other Revolving Lenders set forth in Section 3.4(a), agree to issue letters of credit (“Letters of Credit”) Credit for the account of the Borrower Multicurrency Borrowers on any Business Day during from the Letter of Credit Availability Period Closing Date through but not including the date which is five (5) Business Days prior to the Maturity Date in such form as may be approved from time to time by the applicable Issuing Lender; provided that the no Issuing Lender shall have no any obligation to issue any Letter of Credit if, after giving effect to such issuance, the aggregate amount of all outstanding L/C Exposure Obligations would exceed either the Total lesser of (i) the L/C Commitment or (ii) the Available Revolving Commitment at such timeless the sum of the aggregate principal amount of all outstanding Revolving Loans, all outstanding Non-Cash Management Swingline Loans and the Aggregate Cash Management Swingline Commitment. Each Letter of Credit (other than the Existing Letters of Credit) shall (i) be denominated in Dollars, or a Permitted Currency in a minimum amount acceptable to the discretion of the applicable Issuing Lender, a Foreign Currency; provided that (A) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent (unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (ii) be a standby letter of credit issued to support obligations of the Credit Parties, contingent or otherwise, incurred in the ordinary course of business, (iii) expire on a date satisfactory to the applicable Issuing Lender and the Administrative Agent, which date shall be no later than the earlier of (xA) the first anniversary of its date of issuance and (y) the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; except that (A) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal Date and (B) a one year after its date of issuance; provided that any such Letter of Credit may may, (I) by its terms and otherwise consistent with this Agreement, provide for automatic annual renewals and (II) expire on a date that is up after the Maturity Date with the prior written consent of each of the Administrative Agent and the applicable Issuing Lender, in each such Person's sole discretion; provided that all L/C Obligations associated with any such Letter of Credit are cash collateralized in a manner satisfactory to 365 days after the Administrative Agent and the applicable Issuing Lender on or prior to the Maturity Date, and (iv) be subject to the Uniform Customs and/or ISP98, as set forth in the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on Application or before as determined by the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the applicable Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that not inconsistent therewith, the cash collateral previously provided by the Borrower is equal to less than 105% laws of the Dollar Equivalent State of New York. As of the face amount Closing Date, each of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter Existing Letters of Credit Applicationshall constitute, for all purposes of this Agreement and the L/C Issuer mayother Revolving Loan Documents, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issuedissued and outstanding hereunder. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The No Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) hereunder if such issuance would conflict with, or cause the such Issuing Lender or any L/C Lender Participant to exceed any limits imposed by, any applicable Requirement Applicable Law. References herein to "issue" and derivations thereof with respect to Letters of Law, including, without limitation, any order, judgment Credit shall also include extensions or decree modifications of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter existing Letters of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereofcontext otherwise requires.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
Sources: Credit Agreement (Cott Corp /Cn/)
L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender Lender, in reliance on the agreements of the other Revolving Lenders set forth in Section 3.4(a), agrees to issue letters of credit and bank guarantees in customary form (collectively, “Letters of Credit”) for the account of the Borrower Company (or jointly for the account of the Company and a Restricted Subsidiary) on any Business Day during the Letter of Credit Availability Revolving Commitment Period in such form as may be approved from time to time by the Issuing Lender; provided that the Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Obligations would exceed the Dollar Equivalent of the Total L/C Limit, (ii) the aggregate amount of the Available Revolving Commitments would be less than zero, (iii) the aggregate Dollar Equivalent of Alternative Currency Loans and Alternative Currency L/C Exposure would exceed either the Total L/C Commitment Alternative Currency Sublimit or the Available Revolving Commitment at such time. Each Letter of Credit shall (i) be denominated in Dollars, or in the discretion of the Issuing Lender, a Foreign Currency; provided that (Aiv) the Dollar Equivalent of each Letter of Credit denominated in Foreign Currency (each, a “Foreign Currency L/C”) shall be reported by the Issuing Bank to the Administrative Agent
(unless the Administrative Agent is the Issuing Lender) promptly upon the issuance of such Foreign Currency L/C and monthly within seven (7) Business Days prior to the end of each month (including the month of issuance) or more frequently upon the request of the Administrative Agent and (B) the Dollar Equivalent of the aggregate face amount of all Foreign Currency L/Cs shall not exceed $20,000,000 at any time; and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y1) the date that is five (5) Business Days prior to the Letter Revolving Termination Date or (2) the date that is one year after the Revolving Termination Date, provided that no later than the 60th day prior to the Revolving Termination Date (or for any Letters of Credit Maturity Dateissued after such date, the date of issuance), the Company shall deposit in a cash collateral account opened by the Administrative Agent an amount equal to 103% of the aggregate then undrawn and unexpired amount of such Letters of Credit; except provided that (A) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) subject to the Borrower’s satisfaction of the conditions set forth in Section 5.2 at the time of any such renewal and (B) a Letter of Credit may expire on a date that is up to 365 days after the Letter of Credit Maturity Date (each such Letter of Credit, a “Holdover Letter of Credit”) if, on or before the date that is five (5) Business Days prior to the Letter of Credit Maturity Date, the Borrower provides to the Issuing Lender cash collateral in an amount equal to 105% of the Dollar Equivalent of the face amount of such Letter of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), to secure all of the Obligations relating to such Letter of Credit; provided that the Dollar Equivalent of the aggregate face amount of all Holdover Letters of Credit shall not exceed $50,000,000 at any time; and provided, further, that following the Letter of Credit Maturity Date, the Issuing Bank may recalculate the Dollar Equivalent of the face amount of any Foreign Currency L/C at any time and, to the extent that the cash collateral previously provided by the Borrower is equal to less than 105% of the Dollar Equivalent of the face amount of such Foreign Currency L/C plus all interest, fees, and costs due or to become due in connection therewith (as estimated by the Issuing Lender in its sole discretion), the Borrower shall immediately provide sufficient additional cash collateral to the Issuing Bank to make up for this shortfall. In addition, if the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five (5) Business Days prior to the Letter of Credit Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if:
(i) if such issuance would conflict with, or cause the Issuing Lender or any L/C Lender Participant to exceed any limits imposed by, any applicable Requirement of Law, including, without limitation, any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Issuing Lender, the Letter of Credit is in an initial Dollar Equivalent stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(iv) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Obligations under Letters of Credit as to which the Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount thereof after any drawing thereunder; or
(vi) subject to Section 3.1(a), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance thereof.
(c) Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of UCP 600 at the time of issuance shall apply to each commercial Letter of Credit.
(d) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Dollar Equivalent of the stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Appears in 1 contract
Sources: Credit Agreement (Lear Corp)