The Commitments and Credit Extensions. 2. 01Letter of Credit Facility. (a) The Letter of Credit Commitment. (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the L/C Lenders set forth in this Section 2.01, (1) from time to time on any Business Day during the period from the Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Company or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.01(b), and (2) to honor drawings under the Letters of Credit; and (B) the L/C Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) no L/C Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed such Lender’s Letter of Credit Commitment and (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Facility. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof. Each L/C Lender severally agrees to make L/C Advances from time to time during the Availability Period up to an outstanding principal amount equal to its Letter of Credit Commitment; provided that after giving effect to such L/C Advances, no L/C Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed such Lender’s Letter of Credit Commitment. (ii) The L/C Issuer shall not issue any Letter of Credit if: (A) subject to Section 2.01(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required L/C Lenders have approved such expiry date; or (B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the L/C Lenders have approved such expiry date. (iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if: (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it; (B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally; (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000; (D) such Letter of Credit is to be denominated in a currency other than Dollars; (E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; (F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Company or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.21(a)(iv)) with respect to such Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or (G) such Letter of Credit is to be used as support for any rent or lease payment of any Person. (iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof. (v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (vi) The L/C Issuer shall act on behalf of the L/C Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
Appears in 1 contract
The Commitments and Credit Extensions. 2Committed Loans. 01Letter of Credit Facility.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans in Dollars (Aeach such loan, a “Committed Loan”) to the L/C Issuer agrees, in reliance upon the agreements of the L/C Lenders set forth in this Section 2.01, (1) Borrower from time to time time, on any Business Day during the period from the Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Company or its Subsidiaries, and to amend or extend Letters of Credit previously issued by itAvailability Period, in accordance with Section 2.01(b)an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Commitment; provided, and (2) to honor drawings under the Letters of Credit; and (B) the L/C Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunder; provided however, that after giving effect to any L/C Credit Extension with respect to any Letter of CreditCommitted Borrowing, (xi) no L/C the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed Obligations, plus such Lender’s Letter of Credit Commitment and (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Facility. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof. Each L/C Lender severally agrees to make L/C Advances from time to time during the Availability Period up to an outstanding principal amount equal to its Letter of Credit Commitment; provided that after giving effect to such L/C Advances, no L/C Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations Swing Line Loans shall not exceed such Lender’s Letter Commitment. Within the limits of Credit each Lender’s Commitment.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) , and subject to Section 2.01(b)(iii)the other terms and conditions hereof, the expiry date Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein. Each Committed Borrowing, each conversion of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required L/C Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the L/C Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer Committed Loans from issuing such Letter of Credit, or any Law applicable one Type to the L/C Issuer or any request or directive (whether or not having the force other, and each continuation of law) from any Governmental Authority with jurisdiction over the L/C Issuer Eurodollar Rate Loans shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose be made upon the L/C Issuer with respect Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed notice must be received by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less not later than $500,000;
11:00 a.m. (Di) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder;
(F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory three Business Days prior to the L/C Issuer (in its sole discretion) with the Company or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.21(a)(iv)) with respect to such Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(G) such Letter of Credit is to be used as support for any rent or lease payment requested date of any Person.
(iv) The L/C Issuer shall not amend any Letter Committed Borrowing of, conversion to or continuation of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the L/C Lenders with respect to any Letters of Credit issued by it and the documents associated therewithEurodollar Rate Loans, and (ii) on the L/C Issuer shall have all requested date of any Borrowing of Base Rate Committed Loans or of any conversion of Eurodollar Rate Loans to Base Rate Committed Loans. Each telephonic notice by the benefits and immunities (ABorrower pursuant to this Section 2.02(a) provided must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in Article IX with respect a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Committed Borrowing of or conversion to any acts taken Base Rate Committed Loans shall be in a principal amount of $500,000 or omissions suffered by a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the L/C Issuer in connection with Letters Borrower is requesting a Committed Borrowing, a conversion of Credit issued by it Loans from one Type to the other, or proposed a continuation of Eurodollar Rate Loans, (ii) the requested date of the Committed Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to be issued by it and Issuer Documents pertaining borrowed, converted or continued, (iv) the Type of Committed Loans to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect be borrowed or to such acts or omissionswhich existing Committed Loans are to be converted, and (Bv) as additionally provided herein if applicable, the duration of the Interest Period with respect to the L/C Issuer.47354535_7
Appears in 1 contract
Sources: Credit Agreement (DPL Inc)
The Commitments and Credit Extensions. 2The Loans. 01Letter of Credit Facility.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, each Lender severally agrees to make (Aor cause its Applicable Lending Office to make):
(a) prior to the L/C Issuer agrees, in reliance upon the agreements entry of the L/C Lenders set forth Final Order, initial loans in this Section 2.01, (1) from an aggregate principal amount not to exceed at any time to time on any Business Day during outstanding the period from the Effective Date until the Letter amount of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Company or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.01(b), and (2) to honor drawings under the Letters of Credit; and (B) the L/C Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereundersuch Lender’s Initial Commitment; provided that that, after giving effect to any L/C Credit Extension with respect to any Letter of Creditsuch Borrowing, (x) no L/C Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed such Lender’s Letter of Credit Commitment and (y) the Outstanding Amount of the L/C Obligations Initial Total Outstandings shall not exceed the Letter Initial Commitment Amount in effect at such time; and
(b) upon the entry of Credit Facility. Each request by the Company for Final Order, additional loans in an aggregate principal amount not to exceed at any time outstanding the issuance or amendment amount of a Letter of Credit such ▇▇▇▇▇▇’s Remaining Commitment Amount; provided that if the Total Outstandings shall be deemed to be a representation by in an amount above $55,000,000 at the Company that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limitstime of such Borrowing, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date such Borrowing shall be subject to and governed by the terms and conditions hereof. Each L/C Lender severally agrees to make L/C Advances from time to time during the Availability Period up to an outstanding principal amount equal to its Letter consent of Credit Commitment; provided that after giving effect to such L/C Advances, no L/C Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed such Lender’s Letter of Credit Commitment.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.01(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required L/C Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the L/C Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder;
(F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Company or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.21(a)(iv)) with respect to such Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(G) such Letter of Credit is to be used as support for any rent or lease payment of any PersonRequired Lenders.
(ivc) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would Amounts borrowed under this Section 2.01 and repaid or prepaid may not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereofreborrowed.
(va) The L/C Issuer Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be under no obligation to amend any Letter of Credit if (A) made upon the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the L/C Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided Borrower’s irrevocable notice to the Administrative Agent in Article IX with respect to any acts taken of such Borrowing, conversion or omissions suffered continuation of Eurodollar Rate Loans, which may be given by telephone. Each such notice must be received by the L/C Issuer in connection with Letters Administrative Agent not later than 12:00 noon (New York, New York time) (i) three (3) Business Days prior to the requested date of Credit issued by it any Borrowing or proposed continuation or conversion of Eurodollar Rate Loans (or any conversion of Base Rate Loans to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, Eurodollar Rate Loans) and (Bii) as additionally provided herein with respect one (1) Business Day before the requested date of any Borrowing of Base Rate Loans or any continuation or conversion of Eurodollar Rate Loans to Base Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the L/C Issuer.Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $100,000 in excess thereof. Each Borrowing of, continuation of or conversion to Base Rate Loans, shall be in a principal amount of $5,000,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice shall specify, as applicable, (i) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day),
Appears in 1 contract
Sources: Dip Credit Agreement
The Commitments and Credit Extensions. 2. 01Letter of Credit Facility2.01 [Committed ]Loans; Reserves.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make loans (Aeach such loan, a “Committed Loan”) to the L/C Issuer agrees, in reliance upon the agreements of the L/C Lenders set forth in this Section 2.01, (1) Borrowers from time to time time, on any Business Day during the period from Availability Period, in an aggregate amount not to exceed at any time outstanding the Effective Date until lesser of (x) the Letter amount of Credit Expiration Datesuch Revolving Lender’s Revolving Commitment, to issue Letters of Credit denominated in Dollars for the account or (y) such Revolving Lender’s Applicable Percentage of the Company or its Subsidiaries, and Borrowing Base; subject in each case to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.01(b), and the following limitations:
(2i) to honor drawings under the Letters of Credit; and (B) the L/C Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect Committed Borrowing, the Total Revolving Outstandings shall not exceed the Revolving Loan Cap[, ];
(ii) after giving effect to any Letter Committed Borrowing, the aggregate Outstanding Amount of Creditthe Committed Loans of any Revolving Lender, (x) no L/C plus such Revolving Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed Obligations, plus such Lender’s Letter of Credit Commitment and (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Facility. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof. Each L/C Lender severally agrees to make L/C Advances from time to time during the Availability Period up to an outstanding principal amount equal to its Letter of Credit Commitment; provided that after giving effect to such L/C Advances, no L/C Revolving Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Lender’s Revolving Commitment[,]; and
(iii) The Outstanding Amount of all L/C Obligations shall not at any time exceed such Lender’s Letter of Credit Commitment.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.01(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required L/C Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration DateSublimit. Within the limits of each Revolving Lender’s Revolving Commitment, unless all and subject to the L/C Lenders have approved such expiry dateother terms and conditions hereof, the Borrowers may borrow under this Section 0, prepay under Section 0, and reborrow under this Section 0.
(b) Each FILO Lender severally agrees, on the terms and conditions hereinafter set forth, to make its portion of the FILO Loan to the Borrowers on the [Closing]Fourth Amendment Effective Date in a principal amount equal to its FILO Commitment. Amounts [repaid in respect of the FILO Loan]borrowed under this Section 2.01(b) and repaid or prepaid hereunder may not be reborrowed. Upon each applicable FILO Lender’s making of its portion of the FILO Loan on the [Closing]Fourth Amendment Effective Date, the FILO Commitment of such FILO Lender shall be terminated.
2.02 Borrowings, Conversions and Continuations of Committed Loans.
(a) Committed Loans (other than Swing Line Loans)[ and the outstanding portion of the FILO Loan] shall be either Base Rate Loans or LIBOR Rate Loans as the Lead Borrower may request subject to and in accordance with this Section 0. All Swing Line Loans shall be only Base Rate Loans. Subject to the other provisions of this Section 0, Committed Borrowings of more than one Type may be incurred at the same time.
(b) Each Committed Borrowing, each Conversion of Committed Loans[ or the outstanding FILO Loan] from one Type to the other, and each continuation of LIBOR Rate Loans shall be made upon the Lead Borrower’s irrevocable notice to the Agent, which may be given by telephone. Each such notice must be received by the Agent not later than 1:00 p.m. (i) three (3) Business Days prior to the requested date of any Borrowing of, Conversion to or continuation of LIBOR Rate Loans or of any Conversion of LIBOR Rate Loans to Base Rate Loans, [and ](ii) one (1) Business Day prior to the requested date of any Borrowing of Base Rate Loans and (iii) The L/C Issuer at least three (3) Business Days prior to the Fourth Amendment Effective Date (or such shorter period as may be acceptable to the FILO Agent) in respect of the Borrowing of FILO Loans on the Fourth Amendment Effective Date. Each telephonic notice by the Lead Borrower pursuant to this Section 0 must be confirmed promptly by delivery to the Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Lead Borrower. Each Borrowing of, Conversion to or continuation of LIBOR Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof. Except as provided in Sections 0 and 0, each Borrowing of or Conversion to Base Rate Loans shall be in sum minimum amounts as the Agent may require. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Lead Borrower is requesting a Committed Borrowing or, on the Fourth Amendment Effective Date, the FILO Loan, as applicable, a Conversion of Committed Loans[ or the outstanding portion of the FILO Loan, as applicable,] from one Type to the other, or a continuation of LIBOR Rate Loans, (ii) the requested date of the Borrowing, Conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans[ or the outstanding portion of the FILO Loan, as applicable,] to be borrowed, Converted or continued, (iv) the Type of Committed Loans [or the outstanding FILO Loan, as applicable, ]to be borrowed or to which existing Committed Loans[ or the outstanding FILO Loan, as applicable,] are to be Converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Lead Borrower fails to specify a Type of Committed Loan [or the outstanding portion of the FILO Loan, as applicable, ]in a Committed Loan Notice or if the Lead Borrower fails to give a timely notice requesting a Conversion or continuation, then the applicable Committed Loans[ or the outstanding portion of the FILO Loan, as applicable,] shall be made as, or Converted to, Base Rate Loans. Any such automatic Conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBOR Rate Loans. If the Lead Borrower requests a Borrowing of, Conversion to, or continuation of LIBOR Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. Notwithstanding anything to the contrary herein, a Swing Line Loan may not be under any obligation Converted to issue any Letter of Credit if:a LIBOR Rate Loan.
(Ac) any orderFollowing receipt of a Committed Loan Notice, judgment the Agent shall promptly notify each Revolving Lender of the amount of its Applicable Percentage of the applicable Committed Loans, and if no timely notice of a Conversion or decree continuation is provided by the Lead Borrower, the Agent shall notify each Lender of the details of any Governmental Authority or arbitrator automatic Conversion to Base Rate Loans described in Section 0. In the case of a Committed Borrowing, each Revolving Lender shall by make the amount of its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable Committed Loan available to the L/C Issuer or any request or directive Agent in immediately available funds at the Agent’s Office not later than 2:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 0 (whether or not having and, if such Borrowing is the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibitinitial Credit Extension, or request that the L/C Issuer refrain fromSection 0), the issuance Agent shall make all funds so received available to the Borrowers in like funds as received by the Agent either by (i) crediting the account of letters the Lead Borrower on the books of credit generally Bank of America with the amount of such funds or (ii) wire transfer of such Letter of Credit funds, in particular or shall impose upon each case in accordance with instructions provided to (and reasonably acceptable to) the L/C Issuer Agent by the Lead Borrower; provided, however, that if, on the date the Committed Loan Notice with respect to such Letter of Credit any restrictionBorrowing is given by the Lead Borrower, reserve or capital requirement (for which the there are L/C Issuer is not otherwise compensated hereunder) not Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in effect on the Effective Date, or shall impose upon the full of any such L/C Issuer any unreimbursed lossBorrowings, cost or expense which was not applicable on the Effective Date and which the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuersecond, such Letter of Credit is in an initial stated amount less than $500,000;
(D) such Letter of Credit is to shall be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder;
(F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory made available to the L/C Issuer (in its sole discretion) with the Company or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.21(a)(iv)) with respect to such Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations Borrowers as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(G) such Letter of Credit is to be used as support for any rent or lease payment of any Personprovided above.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the L/C Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
Appears in 1 contract
The Commitments and Credit Extensions. 2. 01Letter of Credit Facility2.01 The Revolving Borrowings.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make (Ax) the L/C Issuer agrees, in reliance upon the agreements of the L/C Lenders set forth in this Section 2.01, (1) a revolving loan or revolving loans to any U.S. Borrower from time to time (each, a “U.S. Revolving Loan” and, collectively, the “U.S. Revolving Loans”) and (y) a revolving loan or revolving loans to any Canadian Borrower from time to time (each, a “Canadian Revolving Loan” and, collectively, the “Canadian Revolving Loans” and, together with the U.S. Revolving Loans, each, a “Revolving Loan” and, collectively, the “Revolving Loans”), in each case, on any Business Day during the period from Availability Period, in an aggregate amount not to exceed at any time outstanding the Effective Date until amount of such Lender’s Revolving Commitment; provided, however, that such Revolving Loans: (i) shall be made and maintained in the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars respective Available Currency for the account respective Borrower; (ii) except as hereafter provided, shall, at the option of the Company or its Subsidiariesapplicable Borrower, be incurred and to amend or extend Letters maintained as, and/or converted into, Base Rate Loans, Canadian Prime Rate Loans (in the case of Credit previously issued by ita Canadian Borrower only), Eurodollar Rate Loans or, in accordance with Section 2.01(b)the case of a Canadian Borrower only, and (2) to honor drawings under the Letters of Credit; and (B) the L/C Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunderCanadian BA Rate Loans; provided that all Revolving Loans comprising the same Borrowing shall at all times be of the same Type; (iii) shall not be made (and shall not be required to be made) by any Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any L/C Credit Extension with respect amounts theretofore outstanding pursuant to this Agreement) would cause the Total Revolving Outstandings to exceed the Total Revolving Commitment as then in effect; (iv) shall not be made (and shall not be required to be made) by any Letter Lender in any instance where the incurrence thereof (after giving effect to the use of Creditthe proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause the Revolving Exposure of such Revolving Lender to exceed such Revolving Lender’s Revolving Commitment at such time; (v) except as otherwise provided in Section 2.01(d), in the case of U.S. Revolving Loans, shall not be made (and shall not be required to be made) by any Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause the Aggregate U.S. Borrower Exposure to exceed the U.S. Borrowing Base at such time; and (vi) except as otherwise provided in Section 2.01(d), in the case of Canadian Revolving Loans, shall not be made (and shall not be required to be made) by any Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause the Aggregate Canadian Borrower Exposure to exceed the lesser of (x) no L/C Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed Canadian Borrowing Base at such Lender’s Letter of Credit Commitment time and (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Facility. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that the L/C Credit Extension so requested complies with the conditions set forth Canadian Sublimit then in the proviso to the preceding sentenceeffect. Within the foregoing limitslimits of each Revolving Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolvingBorrowers may borrow under this Section 2.01(a), prepay under Section 2.03, and accordingly the Company mayreborrow under this Section 2.01(a). Revolving Loans may be Base Rate Loans, during the foregoing periodEurodollar Rate Loans, obtain Letters of Credit to replace Letters of Credit that have expired Canadian Prime Rate Loans or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof. Each L/C Lender severally agrees to make L/C Advances from time to time during the Availability Period up to an outstanding principal amount equal to its Letter of Credit Commitment; provided that after giving effect to such L/C Advances, no L/C Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed such Lender’s Letter of Credit Commitment.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.01(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required L/C Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the L/C Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder;
(F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Company or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.21(a)(iv)) with respect to such Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting ExposureCanadian BA Rate Loans, as it may elect in its sole discretion; or
(G) such Letter of Credit is to be used as support for any rent or lease payment of any Personfurther provided herein.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the L/C Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
Appears in 1 contract
Sources: Abl Credit Agreement
The Commitments and Credit Extensions. 2. 01Letter of 1.01 The Revolving Credit FacilityLoans.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, each Revolving Credit Lender severally agrees to make loans (Aeach such loan, a “Revolving Credit Loan”) to the L/C Issuer agreesBorrowers, on a joint and several basis, denominated in reliance upon the agreements of the L/C Lenders set forth in this Section 2.01, (1) Dollars from time to time on or following the Restatement Effective Date, on any Business Day during the period from the Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Company or its Subsidiaries, and to amend or extend Letters of Credit previously issued by itMaturity Date of, in accordance with Section 2.01(b)an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment; provided, and (2) to honor drawings under the Letters of Credit; and (B) the L/C Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunder; provided however, that after giving effect to any L/C Revolving Credit Extension with respect to any Letter Borrowing, (a) the Total Outstandings shall not exceed the lesser of Credit, (x) no L/C the Aggregate Commitments and (y) subject to Section 2.02(h) and (i), the Borrowing Base at such time and (b) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender’s Applicable Percentage Pro Rata Share of the Outstanding Amount of all L/C Obligations Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Letter of Revolving Credit Commitment and (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Facility. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentenceCommitment. Within the foregoing limitslimits of each Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolvingBorrowers may borrow under this Section 2.01(a), prepay under Section 2.05, and accordingly reborrow under this Section 2.01(a).
(b) The Administrative Agent shall have the Company mayright, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon at any time and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof. Each L/C Lender severally agrees to make L/C Advances from time to time during the Availability Period up to an outstanding principal amount equal to its Letter of Credit Commitment; provided that after giving effect to such L/C Advances, no L/C Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed such Lender’s Letter of Credit Commitment.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.01(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required L/C Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the L/C Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Restatement Effective Date, in its Permitted Discretion to establish, modify or shall impose eliminate Reserves upon five Business Days prior notice to the L/C Issuer any unreimbursed loss, cost or expense Lead Borrower (during which was not applicable on the Effective Date and which the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by period the Administrative Agent shall be available to discuss any such proposed Reserve with the Borrowers to afford the Borrowers an opportunity to take such action as may be required so that the event, condition or circumstance that is the basis for such Reserve no longer exists in the manner and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder;
(F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Company or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.21(a)(iv)) with respect to such Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(G) such Letter of Credit is to be used as support for any rent or lease payment of any Person.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the L/C Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided extent reasonably satisfactory to the Administrative Agent in Article IX its Permitted Discretion); provided that no such prior notice shall be required for changes to any Reserves (1) resulting solely by virtue of mathematical calculations of the amount of the Reserve in accordance with the methodology of calculation previously utilized (such as, but not limited to, rent and Customer Credit Liabilities), (2) if it would be reasonably likely that a Material Adverse Effect to the Lenders would occur were such Reserve not changed prior to the expiration of such notice period or (3) during the continuance of any Event of Default; and provided, further, that the Administrative Agent may not implement Reserves with respect to any acts taken matters which are already specifically reflected as ineligible Accounts, ineligible Credit Card Receivables or omissions suffered by ineligible Inventory or criteria deducted in computing the L/C Issuer in connection with Letters Appraised Value of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C IssuerEligible Inventory.
Appears in 1 contract
Sources: Abl Credit Agreement (GMS Inc.)
The Commitments and Credit Extensions. 2. 01Letter of Credit Facility
2.01 Committed Loans; Reserves.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, each ▇▇▇▇▇▇ severally agrees to make loans (Aeach such loan, a “Committed Loan”) to the L/C Issuer agrees, in reliance upon the agreements of the L/C Lenders set forth in this Section 2.01, (1) Borrower from time to time time, on any Business Day during the period from Availability Period, subject in each case to the Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Company or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.01(b), and following limitations:
(2i) to honor drawings under the Letters of Credit; and (B) the L/C Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect Committed Borrowing, the Total Outstandings shall not exceed the lesser of (A) the Aggregate Commitments, or (B) the Borrowing Base;
(ii) after giving effect to any Letter Committed Borrowing, the aggregate Outstanding Amount of Creditthe Committed Loans of any Lender, (x) no L/C plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed Obligations, plus such Lender’s Letter of Credit Commitment and (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Facility. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof. Each L/C Lender severally agrees to make L/C Advances from time to time during the Availability Period up to an outstanding principal amount equal to its Letter of Credit Commitment; provided that after giving effect to such L/C Advances, no L/C Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed the lesser of (x) such Lender’s Commitment, or (y) such Lender’s Applicable Percentage of the Borrowing Base; and
(iii) the Outstanding Amount of all L/C Obligations shall not at any time exceed such Lender’s Letter of Credit Commitment.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.01(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required L/C Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration DateSublimit. Within the limits of each Lender’s Commitment, unless all the L/C Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable and subject to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain fromother terms and conditions hereof, the issuance of letters of credit generally Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Committed Loans may be Base Rate Loans or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder;
(F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Company or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.21(a)(iv)) with respect to such Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting ExposureLIBO RateTerm Benchmark Loans, as it may elect further provided herein. Any Extended Loans made in its sole discretion; or
(G) such Letter of Credit is to be used as support for any rent or lease payment of any Person.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer accordance with Section 2.16 and an Extension Amendment shall be under no obligation subject to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer this Article II and shall act on behalf of the L/C Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have constitute Committed Loans for all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.purposes hereunder.
Appears in 1 contract
The Commitments and Credit Extensions. 2. 01Letter 2.01 Letters of Credit FacilityCredit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the each L/C Issuer agrees, in reliance upon the agreements of the L/C other Lenders set forth in this Section 2.01, ,
(1) from time to time on any Business Day during the period from the Effective Closing Date until the Letter of Credit Expiration Maturity Date, to issue Letters of Credit denominated in Dollars for the account of the Company or Borrower and its Subsidiaries, and to amend or extend renew Letters of Credit previously issued by it, in accordance with Section 2.01(b)subsection (b) below, and (2) to honor drawings drafts under the Letters of Credit; and (B) the L/C Lenders severally agree to participate in Letters of Credit issued for the account of the Company or Borrower and its Subsidiaries and any drawings thereunderSubsidiaries; provided that after giving effect no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) no L/C the Total Outstandings would exceed the lesser of (i) Aggregate Commitments and (ii) the Collateral Value of the Borrowing Base, or (y) any Lender’s Applicable Percentage Pro Rata Share of the Outstanding Amount of all L/C Obligations shall Obligations, would exceed such Lender’s Letter of Credit Commitment and (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Facility. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentenceCommitment. Within the foregoing limits, and subject to the terms and conditions hereof, the CompanyBorrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All With respect to each Existing Letters Letter of Credit Credit, (i) all undrawn face amounts thereof shall constitute L/C Obligations, (ii) all drawings thereunder not reimbursed by the Borrower as required in Section 2.01(c)(i) shall constitute Unreimbursed Amounts, and (iii) the reimbursement obligations with respect thereto shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof. Each L/C Lender severally agrees to make L/C Advances from time to time during the Availability Period up to an outstanding principal amount equal to its Letter of Credit Commitment; provided that after giving effect to such L/C Advances, no L/C Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed such Lender’s Letter of Credit Commitment.
(ii) The No L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.01(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required L/C Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the L/C Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue or renew or permit renewal of any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the such L/C Issuer from issuing such Letter of Credit, or any Law applicable to the such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the such L/C Issuer shall prohibit, or request that the such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the such L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Closing Date, or shall impose upon the such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Closing Date and which the such L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) subject to Section 2.01(b)(iii), the expiry date of such requested Letter of Credit would occur more than thirteen months after the date of issuance or last renewal, unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the such L/C Issuer, ; or
(E) such Letter of Credit is in an initial stated amount less than $500,000;
(D) such Letter of Credit 50,000.00, or is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder;
(F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Company or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.21(a)(iv)) with respect to such Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(G) such Letter of Credit is to be used as support for any rent or lease payment of any Person.
(iviii) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The No L/C Issuer shall be under no any obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the L/C Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
Appears in 1 contract
The Commitments and Credit Extensions. 2Committed Loans. 01Letter of Credit Facility.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans in Dollars (Aeach such loan, a "Committed Loan") to the L/C Issuer agrees, in reliance upon the agreements of the L/C Lenders set forth in this Section 2.01, (1) Borrower from time to time time, on any Business Day during the period from the Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Company or its Subsidiaries, and to amend or extend Letters of Credit previously issued by itAvailability Period, in accordance with Section 2.01(b)an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Commitment; provided, and (2) to honor drawings under the Letters of Credit; and (B) the L/C Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunder; provided however, that after giving effect to any L/C Credit Extension with respect to any Letter of CreditCommitted Borrowing, (xi) no L/C the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed Obligations, plus such Lender’s Letter of Credit Commitment and (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Facility. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof. Each L/C Lender severally agrees to make L/C Advances from time to time during the Availability Period up to an outstanding principal amount equal to its Letter of Credit Commitment; provided that after giving effect to such L/C Advances, no L/C Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations Swing Line Loans shall not exceed such Lender’s Letter Commitment. Within the limits of Credit each Lender’s Commitment.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) , and subject to Section 2.01(b)(iii)the other terms and conditions hereof, the expiry date Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein. Each Committed Borrowing, each conversion of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required L/C Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the L/C Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer Committed Loans from issuing such Letter of Credit, or any Law applicable one Type to the L/C Issuer or any request or directive (whether or not having the force other, and each continuation of law) from any Governmental Authority with jurisdiction over the L/C Issuer Eurodollar Rate Loans shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose be made upon the L/C Issuer with respect Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Committed Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Committed Loans and (ii) on the L/C Issuerrequested date of any Borrowing of Base Rate Committed Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, such Letter appropriately completed and signed by a Responsible Officer of Credit the Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Committed Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) 47012838_8 whether the Borrower is in an initial stated requesting a Committed Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Committed Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount less than $500,000;
(D) such Letter of Credit is Committed Loans to be denominated borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Committed Loan in a currency other than Dollars;
(E) Committed Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Committed Loans shall be made as, or converted to, Base Rate Loans. Any such Letter of Credit contains any provisions for automatic reinstatement conversion to Base Rate Loans shall be effective as of the stated amount after any drawing thereunder;
(F) any Lender is at that time a Defaulting Lender, unless last day of the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (Interest Period then in its sole discretion) with the Company or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.21(a)(iv)) with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Committed Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Defaulting Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. Following receipt of a Commitment Loan Notice, the Administrative Agent shall promptly notify each Lender arising from either of the Letter amount of Credit then proposed to be issued its Applicable Percentage of the applicable Committed Loans, and if no timely notice of a conversion or that Letter continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(G) such Letter of Credit is to be used as support for any rent or lease payment details of any Person.
(iv) The L/C Issuer automatic conversion to Base Rate Loans described in the preceding subsection. In the case of a Committed Borrowing, each Lender shall not amend any Letter make the amount of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit its Committed Loan available in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the L/C Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided Dollars to the Administrative Agent in Article IX immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received immediately available to the Borrower in Dollars either by (i) crediting the account of the Borrower on the books of Fifth Third with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower. Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Required Lenders. The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Fifth Third’s prime rate used in determining the Base Rate promptly following the public announcement of such change. After giving effect to all Committed Borrowings, all conversions of Committed Loans from one Type to the other, and all continuations of Committed Loans as the same Type, there shall not be more than ten Interest Periods in effect with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.Loans. 47012838_8
Appears in 1 contract
Sources: Credit Agreement (DPL Inc)
The Commitments and Credit Extensions. 2. 01Letter of Credit Facility2.01 The Loans.
(a) The Letter of Revolving Credit Commitment.
(i) Borrowings. Subject to the terms and conditions set forth herein, each Revolving Credit Lender severally agrees to make loans in Dollars (Aeach such loan, a “Revolving Credit Loan”) to the L/C Issuer agrees, in reliance upon the agreements of the L/C Lenders set forth in this Section 2.01, (1) Borrowers from time to time time, on any Business Day during the period from the Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Company or its Subsidiaries, and to amend or extend Letters of Credit previously issued by itAvailability Period, in accordance with Section 2.01(b)an aggregate amount not to exceed at any time outstanding the amount of such ▇▇▇▇▇▇’s Revolving Credit Commitment; provided, and (2) to honor drawings under the Letters of Credit; and (B) the L/C Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunder; provided however, that after giving effect to any L/C Revolving Credit Extension with respect to any Letter of CreditBorrowing, (x) no L/C Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed such Lender’s Letter of Credit Commitment and (yi) the Outstanding Amount of the L/C Obligations Total Revolving Credit Outstandings shall not exceed the Letter of Revolving Credit Facility. Each request by , and (ii) the Company for the issuance or amendment of a Letter of Revolving Credit Exposure shall be deemed to be a representation by the Company that the L/C not exceed such Revolving Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentenceLender’s Revolving Credit Commitment. Within the foregoing limitslimits of each Revolving Credit ▇▇▇▇▇▇’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolvingBorrowers may borrow under this Section 2.01(c), prepay under Section 2.05, and accordingly the Company mayreborrow under this Section 2.01(c). Revolving Credit Loans may be Base Rate Loans or BSBY Rate Loans, during the foregoing period, obtain Letters of Credit as further provided herein.
(a) The Term A Borrowing. Subject to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof. Each L/C set forth herein, each Term A Lender severally agrees to make L/C Advances from time a single loan to time during the Availability Period up Borrowers on the Restatement Date in Dollars in an amount not to an outstanding principal amount equal to its Letter of Credit Commitment; provided that after giving effect to exceed such L/C Advances, no L/C Term A Lender’s Term A Commitment Percentage of the Term A Facility. The Term A Borrowing shall consist of Term A Loans made simultaneously by the Term A Lenders in accordance with their respective Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed such Lender’s Letter of Credit Commitment.
(iiTerm A Facility. Amounts borrowed under this Section 2.01(b) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.01(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance and repaid or last extension, unless the Required L/C Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the L/C Lenders have approved such expiry date.
(iii) The L/C Issuer shall prepaid may not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment reborrowed. Term A Loans may be Base Rate Loans or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder;
(F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Company or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.21(a)(iv)) with respect to such Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting ExposureBSBY Rate Loans, as it may elect in its sole discretion; or
(G) such Letter of Credit is to be used as support for any rent or lease payment of any Personfurther provided herein.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the L/C Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
Appears in 1 contract
The Commitments and Credit Extensions. 2. 01Letter of Credit Facility2.01 The Loans.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the L/C Lenders set forth in this Section 2.01, (1) from time each Lender with an Initial Term Commitment severally agrees to time on any Business Day during the period from the Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit make a single loan denominated in Dollars for (the account “Initial Term Loans”) to the Borrower on the Closing Date in an amount not to exceed such ▇▇▇▇▇▇’s Initial Term Commitment. The initial Borrowing under this Section 2.01(a) shall consist of Initial Term Loans made simultaneously by the Company or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, Lenders in accordance with their respective Commitments. Amounts borrowed under this Section 2.01(b)2.01(a) or otherwise pursuant to this Agreement and subsequently repaid or prepaid may not be reborrowed. Loans may be Base Rate Loans or Term Benchmark Loans as further provided herein.
(b) After the Closing Date, subject to and upon the terms and conditions set forth herein, each Lender with a Commitment (2other than an Initial Term Commitment) to honor drawings under the Letters of Credit; and (B) the L/C Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter Tranche of Credit, Term Loans (xother than Initial Term Loans) no L/C Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed such Lender’s Letter of Credit Commitment and (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Facility. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof. Each L/C Lender severally agrees to make L/C Advances from time a Term Loan denominated in Dollars under such Tranche to time during the Availability Period up Borrowers in an amount not to an outstanding principal amount equal to its Letter of Credit Commitment; provided that after giving effect to such L/C Advances, no L/C Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed such Lender’s Letter of Credit Commitment.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.01(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required L/C Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the L/C Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material ’s Commitment under such Tranche on the date of incurrence thereof, which Term Loans under such Tranche shall be incurred pursuant to it;
a single drawing on the date set forth for such incurrence. Such Term Loans may be Base Rate Loans or Term Benchmark Loans as further provided herein. Once repaid, Term Loans incurred hereunder may not be reborrowed (B) the issuance it being understood, however, that prepayments will be taken into account for purposes of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder;
(F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory Prepayment-Based Incremental Facility to the L/C Issuer (in its sole discretion) with the Company or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to extent provided by Section 2.21(a)(iv2.16)) with respect to such Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(G) such Letter of Credit is to be used as support for any rent or lease payment of any Person.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the L/C Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
Appears in 1 contract
The Commitments and Credit Extensions. 2The Loans. 01Letter of Credit Facility.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (Aeach such loan, a “Revolving Credit Loan”) to the L/C Issuer agrees, in reliance upon the agreements of the L/C Lenders set forth in this Section 2.01, (1) Borrower from time to time time, on any Business Day during the period from the Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Company or its Subsidiaries, and to amend or extend Letters of Credit previously issued by itAvailability Period, in accordance with Section 2.01(b)an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Commitment; provided, and (2) to honor drawings under the Letters of Credit; and (B) the L/C Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunder; provided however, that after giving effect to any L/C Revolving Credit Extension with respect to any Letter of CreditBorrowing, (xi) no L/C the Total Outstandings shall not exceed the Borrowing Base and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall exceed Obligations, plus such Lender’s Letter of Credit Commitment and (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Facility. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof. Each L/C Lender severally agrees to make L/C Advances from time to time during the Availability Period up to an outstanding principal amount equal to its Letter of Credit Commitment; provided that after giving effect to such L/C Advances, no L/C Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations Swing Line Loans shall not exceed such Lender’s Letter Commitment. Notwithstanding anything to the contrary in this Agreement, all Revolving Credit Loans outstanding from and after the First Amendment Date up to the FILO Amount (until the FILO Amount is $0) shall be deemed to be “FILO Loans”. Within the limits of Credit Commitment.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) the Borrowing Base, and subject to Section 2.01(b)(iii)the other terms and conditions hereof, the expiry date Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Revolving Credit Loans may be Base Rate Loans or LIBOR Loans, as further provided herein; provided, however, any Revolving Credit Borrowings made on the Closing Date or any of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, three (3) Business Days following the Closing Date shall be made as Base Rate Loans unless the Required L/C Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the L/C Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D) such Letter of Credit is to be denominated in Borrower delivers a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder;
(F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Company or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.21(a)(iv)) with respect to such Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(G) such Letter of Credit is to be used as support for any rent or lease payment of any Person.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the L/C Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided funding indemnity letter reasonably acceptable to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and not less than three (B3) as additionally provided herein with respect Business Days prior to the L/C Issuerdate of such Revolving Credit Borrowing.
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