Advances and Letters of Credit. (a) Subject to the provisions of this Agreement, including without limitation the satisfaction of the conditions described in Article III, Lender agrees to establish a Revolving Loan Facility pursuant to which Lender may, in its sole discretion upon request of Borrower, make and incur Credit Accommodations in support of Export Orders, provided the Credit Accommodation Amount at any time shall not exceed the lesser of (i) the Maximum Amount, and (ii) the Export-Related Borrowing Base. All Letters of Credit issued shall be in Dollars and all Disbursements shall be made in Dollars. (b) Lender may agree to make advances directly to Borrower or for Borrower's account during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Borrower shall request each advance under the Loan by delivering to Lender a written request therefore, an Export-Related Borrowing Base Certificate, a copy of the Export Order(s) against which Borrower is requesting an advance, and such other information and documentation as Lender may require, in accordance with Section 6.10. Upon receipt of the above described information and documents by Lender, Lender shall make such advance within five (5) Business Days following Lender's determination that all conditions to the making of such advance have been satisfied. Each advance shall be conclusively deemed to have been made at the request of and for the benefit of Borrower (a) when credited to any deposit account of Borrower maintained with Lender, or (b) when advanced in accordance with the instructions of an authorized Person. Lender, at its option, may set a cutoff time, after which all requests for advances under the Loan will be treated as having been requested on the next succeeding Business Day. (c) Lender may agree to issue Letters of Credit on behalf of Borrower or for Borrower's account from time to time during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Standby Letters of Credit may be issued for Borrower's account for use as a performance bond, which Standby Letters of Credit can be drawn upon by Buyers only if Borrower fails to perform its obligations with respect to the relevant Export Order. Each Disbursement to fund a drawing under a Standby Letter of Credit shall conclusively be deemed to have been made when advanced in accordance with a draw request or instructions of an authorized Person. Each Letter of Credit will be in form and substance satisfactory to Lender and if approved for issuance by Lender in its sole discretion, will be issued by Lender as soon as practicable following (a) Lender's receipt of a completed Letter of Credit Application, an Export-Related Borrowing Base Certificate, a copy of the Export Order with respect to which Borrower is requesting a Letter of Credit, and such other information and documentation as Lender may require, in accordance with Section 6.10; and (b) Lender's determination that all conditions to issuing such Letter of Credit have been satisfied, including but not limited to the Borrower's obligation to provide and maintain adequate collateral in the amount equivalent to twenty-five percent (25%) of the undrawn amount of each Letter of Credit issued hereunder. In no event shall (i) the expiry date of any Letter of Credit be later than twelve (12) months from the date of issuance of such Letter of Credit. Lender shall not be requested to issue during the last sixty (60) days of the Credit Period any Letter of Credit which will expire after the Stated Final Disbursement Date unless Lender agrees in writing to a renewal of the Loan, or Ex-Im Bank's prior written approval of the issuance of such Letter of Credit is obtained. (d) The terms and conditions of each Letter of Credit Application delivered by Borrower and accepted by Lender hereunder, including without limitation terms related to reimbursement of amounts drawn and the payment of fees and interest, are incorporated herein by this reference; provided, however, that (a) no provisions subjecting Lender and Borrower to arbitration or other dispute resolution provisions contained in any Letter of Credit Application shall be incorporated into this Agreement or applicable to Letters of Credit issued pursuant to this Agreement, and (b) to the extent that there is any conflict between the terms and conditions of any Letter of Credit Application and this Agreement, the terms of this Agreement shall prevail, except for (i) definitions contained in any Letter of Credit Application, (ii) if there is any provision contained in any Letter of Credit Application which subjects the Letter of Credit issued pursuant thereto to the UCP, the UCP shall prevail and (iii) if there is any provision contained in any Letter of Credit Application for a Standby Letter of Credit which subjects the Standby Letter of Credit issued pursuant thereto to the ISP, the ISP shall prevail. (e) The outstanding principal balance of Disbursements hereunder shall be evidenced by the Note and shall be repaid as set forth in Section 2.3 below. (f) Interest on the outstanding principal balance of the Note shall accrue and be payable as set forth in Section 2.5 below. (g) If the Lender determines that the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for the Lender to make the Disbursements and have interest accruing thereon on the basis of the LIBOR Rate, then, on notice thereof by the Lender to the Borrower, the Disbursements shall thereafter accrue interest at the CB Floating Rate until the Bank notifies the Borrower that the circumstances giving rise to such determination no longer exist. If the Bank determines that for any reason adequate and reasonable means do not exist for determining the LIBOR Rate for any LIBOR Period, or that the LIBOR Rate does not adequately and fairly reflect the cost to the Bank of making or maintaining the Disbursements, (i) the Bank will promptly so notify the Borrower, and (ii) thereafter, the obligation of the Bank to make or maintain the Disbursements with interest accruing thereon on the basis of the LIBOR Rate shall be suspended until the Lender revokes such notice in writing.
Appears in 3 contracts
Samples: Export Loan Agreement (Fuelcell Energy Inc), Export Loan Agreement (Fuelcell Energy Inc), Export Loan Agreement (Fuelcell Energy Inc)
Advances and Letters of Credit. (a) Subject to Each Bank severally agrees, on the provisions of terms and conditions set forth in this Agreement, including without limitation to make Advances to the satisfaction of Company from time to time prior to the conditions described in Article III, Lender agrees to establish a Revolving Loan Facility pursuant to which Lender mayTermination Date, in its sole discretion upon request of Borrower, make and incur Credit Accommodations amounts not to exceed in support of Export Orders, provided the Credit Accommodation Amount aggregate at any one time outstanding the amount of its Commitment, which Advances shall be each Bank's Ratable Share of such amounts as the Company may request up to, but not exceed exceeding, a total principal amount equal to the lesser of (i) the Maximum AmountTotal Commitments MINUS any Letter of Credit Exposure, and or (ii) the Export-Related Borrowing Base. All Letters of Credit issued shall be in Dollars and all Disbursements shall be made in Dollars.
(b) Lender may agree to make advances directly to Borrower or for Borrower's account during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Borrower shall request each advance under the Loan by delivering to Lender a written request therefore, an Export-Related Borrowing Base Certificate, a copy of the Export Order(s) against which Borrower is requesting an advance, and such other information and documentation as Lender may require, in accordance with Section 6.10. Upon receipt of the above described information and documents by Lender, Lender shall make such advance within five (5) Business Days following Lender's determination that all conditions to the making of such advance have been satisfied. Each advance shall be conclusively deemed to have been made at the request of and for the benefit of Borrower (a) when credited to any deposit account of Borrower maintained with Lender, or (b) when advanced in accordance with the instructions of an authorized Person. Lender, at its option, may set a cutoff time, after which all requests for advances under the Loan will be treated as having been requested on the next succeeding Business Day.
(c) Lender may agree to issue Letters of Credit on behalf of Borrower or for Borrower's account from time to time during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Standby Letters of Credit may be issued for Borrower's account for use as a performance bond, which Standby Letters of Credit can be drawn upon by Buyers only if Borrower fails to perform its obligations with respect to the relevant Export Order. Each Disbursement to fund a drawing under a Standby Letter of Credit shall conclusively be deemed to have been made when advanced in accordance with a draw request or instructions of an authorized Person. Each Letter of Credit will be in form and substance satisfactory to Lender and if approved for issuance by Lender in its sole discretion, will be issued by Lender as soon as practicable following (a) Lender's receipt of a completed Letter of Credit Application, an Export-Related Borrowing Base Certificate, a copy of the Export Order with respect to which Borrower is requesting a Letter of Credit, and such other information and documentation as Lender may require, in accordance with Section 6.10; and (b) Lender's determination that all conditions to issuing such Letter of Credit have been satisfied, including but not limited to the Borrower's obligation to provide and maintain adequate collateral in the amount equivalent to twenty-five percent (25%) of the undrawn amount of each Letter of Credit issued hereunder. In no event shall (i) the expiry date of any Letter of Credit be later than twelve (12) months from the date of issuance of such Letter of Credit. Lender shall not be requested to issue during the last sixty (60) days of the Credit Period any Letter of Credit which will expire after the Stated Final Disbursement Date unless Lender agrees in writing to a renewal of the Loan, or Ex-Im Bank's prior written approval of the issuance of such Letter of Credit is obtained.
(d) The terms and conditions of each Letter of Credit Application delivered by Borrower and accepted by Lender hereunder, including without limitation terms related to reimbursement of amounts drawn and the payment of fees and interest, are incorporated herein by this reference; provided, however, that no Bank shall be obligated to make any Advance pursuant to a particular Rate Option at any time when such Rate Option exceeds the Highest Lawful Rate. Subject to the terms of this Agreement, the Company may borrow, repay and reborrow at any time prior to the Termination Date. Such loans may be Floating Rate Advances, Fixed CD Rate Advances or Eurodollar Advances, or a combination thereof, determined in accordance with Section 2.7. Each Advance shall bear interest at one of the Rate Options selected in accordance with Section 2.7 or otherwise as provided in Section 2.7, and shall be paid in full by the Company on the Termination Date.
(ab) no provisions subjecting Lender Each Bank severally agrees, on the terms and Borrower conditions set forth in this Agreement and each Application, that the Agent shall, and the Agent agrees on behalf of the Banks to arbitration or other dispute resolution provisions contained in any Letter the extent of their Ratable Share to, issue Standby Letters of Credit Application from time to time, as requested by the Company and otherwise in accordance with Subsection 2.6(c). The Existing Standby Letters of Credit are and shall be incorporated into this Agreement or applicable to constitute Standby Letters of Credit issued pursuant to this Agreement, and (b) to the extent that there is any conflict between the terms and conditions of any Letter of Credit Application and this Agreement, the terms of under this Agreement shall prevail, except for (i) definitions contained on behalf of the Banks in any Letter their Ratable Share. Upon the issuance of Credit Application, (ii) if there is any provision contained in any Letter of Credit Application which subjects the Letter of Credit issued pursuant thereto to the UCP, the UCP shall prevail and (iii) if there is any provision contained in any Letter of Credit Application for a each Standby Letter of Credit which subjects (and contemporaneously herewith as to Existing Standby Letters of Credit), each Bank shall automatically acquire a participation in the Standby Letter of Credit issued pursuant thereto to the ISP, the ISP shall prevail.
(e) The outstanding principal balance of Disbursements hereunder shall be evidenced by the Note and shall be repaid as set forth in Section 2.3 below.
(f) Interest on the outstanding principal balance liability of the Note shall accrue and be payable as set forth in Section 2.5 below.
(g) If the Lender determines that the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for the Lender to make the Disbursements and have interest accruing thereon on the basis of the LIBOR Rate, then, on notice thereof by the Lender to the Borrower, the Disbursements shall thereafter accrue interest at the CB Floating Rate until the Bank notifies the Borrower that the circumstances giving rise Agent thereunder equal to such determination no longer exist. If Bank's Ratable Share thereof, as the Bank determines that for any reason adequate and reasonable means do not exist for determining the LIBOR Rate for any LIBOR Periodsame may be reduced, increased, renewed, extended or that the LIBOR Rate does not adequately and fairly reflect the cost replaced from time to the Bank of making or maintaining the Disbursements, (i) the Bank will promptly so notify the Borrower, and (ii) thereafter, the obligation of the Bank to make or maintain the Disbursements time in accordance with interest accruing thereon on the basis of the LIBOR Rate shall be suspended until the Lender revokes such notice in writingthis Agreement.
Appears in 1 contract
Samples: Credit Agreement (Haggar Corp)
Advances and Letters of Credit. (a) Subject to the provisions of this Agreement, including without limitation the satisfaction of the conditions described in Article III, Lender agrees to establish a Revolving Loan Facility pursuant to which Lender may, in its sole discretion upon request of Borrower, make and incur Credit Accommodations in support of Export Orders, provided the Credit Accommodation Amount at any time The Lenders shall not exceed the lesser of (i) the Maximum Amount, and (ii) the Export-Related Borrowing Base. All be required to make any Advance or issue any Letters of Credit issued shall be in Dollars and all Disbursements shall be made in Dollars.
(b) Lender may agree unless the Borrower has furnished to make advances directly to Borrower or for Borrower's account during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Borrower shall request Administrative Agent each advance under the Loan by delivering to Lender a written request therefore, an Export-Related Borrowing Base Certificate, a copy of the Export Order(s) against which Borrower is requesting an advancefollowing, and such other information and documentation as Lender may require, in accordance with Section 6.10. Upon receipt of the above described information and documents by Lender, Lender shall make such advance within five (5) Business Days following Lender's determination that all conditions to the making of such advance have been satisfied. Each advance shall be conclusively deemed to have been made at the request of and sufficient copies for the benefit of Borrower (a) when credited to any deposit account of Borrower maintained with LenderLenders, or (b) when advanced in accordance with the instructions of an authorized Person. Lender, at its option, may set a cutoff time, after which all requests for advances under the Loan will be treated as having been requested on the next succeeding Business Day.
(c) Lender may agree to issue Letters of Credit on behalf of Borrower or for Borrower's account from time to time during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Standby Letters of Credit may be issued for Borrower's account for use as a performance bond, which Standby Letters of Credit can be drawn upon by Buyers only if Borrower fails to perform its obligations with respect to the relevant Export Order. Each Disbursement to fund a drawing under a Standby Letter of Credit shall conclusively be deemed to have been made when advanced in accordance with a draw request or instructions of an authorized Person. Each Letter of Credit will be in form and substance satisfactory to Lender the Administrative Agent and if approved for issuance by Lender in its sole discretion, will be issued by Lender as soon as practicable following (a) Lender's receipt of a completed Letter of Credit Application, an Export-Related Borrowing Base Certificate, a copy the Lenders: Copies of the Export Order with respect to which Borrower is requesting a Letter Certificate of Credit, and such Incorporation (or other information and documentation as Lender may require, in accordance with Section 6.10; and (b) Lender's determination that all conditions to issuing such Letter of Credit have been satisfied, including but not limited to the Borrower's obligation to provide and maintain adequate collateral in the amount equivalent to twenty-five percent (25%comparable constituent document) of the undrawn amount Borrower and each Material Subsidiary as of the Closing Date (collectively, the "Initial Loan Parties"), not heretofore delivered to the Administrative Agent, dated as of the Closing Date, together with all amendments and a certificate of good standing (or comparable document), both certified by the appropriate governmental officer in its jurisdiction of incorporation; Copies, certified by the Secretary, Assistant Secretary or authorized representative of each Letter of Credit issued hereunder. In no event shall (i) the expiry date of any Letter of Credit be later than twelve (12) months from the date of issuance of such Letter of Credit. Lender shall not be requested to issue during the last sixty (60) days of the Credit Period Initial Loan Parties of their respective By-Laws (or other comparable governing document) and of their respective board of directors' or comparable resolutions (and resolutions of other governing bodies, if any Letter of Credit which will expire after are deemed necessary by counsel for any Lender) authorizing the Stated Final Disbursement Date unless Lender agrees in writing to a renewal execution of the LoanLoan Documents entered into by it; An incumbency certificate, executed by the Secretary, Assistant Secretary or Ex-Im Bank's prior written approval authorized representative of each of the issuance of such Letter of Credit is obtained.
(d) The terms Initial Loan Parties, which shall identify by name and conditions of each Letter of Credit Application delivered by Borrower title and accepted by Lender hereunder, including without limitation terms related to reimbursement of amounts drawn and bear the payment of fees and interest, are incorporated herein by this reference; provided, however, that (a) no provisions subjecting Lender and Borrower to arbitration or other dispute resolution provisions contained in any Letter of Credit Application shall be incorporated into this Agreement or applicable to Letters of Credit issued pursuant to this Agreement, and (b) to the extent that there is any conflict between the terms and conditions of any Letter of Credit Application and this Agreement, the terms of this Agreement shall prevail, except for (i) definitions contained in any Letter of Credit Application, (ii) if there is any provision contained in any Letter of Credit Application which subjects the Letter of Credit issued pursuant thereto to the UCP, the UCP shall prevail and (iii) if there is any provision contained in any Letter of Credit Application for a Standby Letter of Credit which subjects the Standby Letter of Credit issued pursuant thereto to the ISP, the ISP shall prevail.
(e) The outstanding principal balance of Disbursements hereunder shall be evidenced by the Note and shall be repaid as set forth in Section 2.3 below.
(f) Interest on the outstanding principal balance signature of the Note shall accrue and be payable as set forth in Section 2.5 below.
officers or authorized representatives of the applicable Initial Loan Party authorized to sign the Loan Documents (g) If the Lender determines that the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawfulincluding, for the Lender to make the Disbursements and have interest accruing thereon on the basis of the LIBOR Rate, then, on notice thereof by the Lender to the Borrower, the Disbursements officers thereof authorized to make borrowings hereunder), upon which certificate the Lenders shall thereafter accrue interest at be entitled to rely until informed of any change in writing by the CB Floating Rate until the Bank notifies applicable Initial Loan Party or the Borrower that the circumstances giving rise to such determination no longer exist. If the Bank determines that for any reason adequate on its behalf; A certificate, in form and reasonable means do not exist for determining the LIBOR Rate for any LIBOR Period, or that the LIBOR Rate does not adequately and fairly reflect the cost substance satisfactory to the Bank Administrative Agent, signed by an Authorized Officer of making or maintaining the Disbursements, (i) the Bank will promptly so notify the Borrower, certifying that on the Closing Date all the representations in this Agreement are true and correct (ii) thereafterunless such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct as of such date), no Default or Unmatured Default has occurred and is continuing and no material adverse change in the obligation business, condition (financial or otherwise), operations, properties or prospects of the Bank to make Borrower and its Subsidiaries (taken as a whole), or maintain the Disbursements with interest accruing thereon on the basis since December 31, 2002; Written opinions of the LIBOR Rate shall be suspended until Initial Loan Parties' counsel, addressed to the Lender revokes such notice Administrative Agent and the Lenders, in writing.substantially the forms attached hereto as Exhibit E;
Appears in 1 contract
Advances and Letters of Credit. (a) Subject to the provisions of this Agreement, including without limitation the satisfaction of the conditions described in Article III, Lender agrees to establish a Revolving Loan Facility pursuant to which Lender may, in its sole discretion upon request of Borrower, make and incur Credit Accommodations in support of Export Orders, provided the Credit Accommodation Amount at any time The Lenders shall not exceed the lesser be required to make further Loans or issue any Letters of Credit or purchase any participations therein unless (i) no law, regulation, order, judgment or decree of any Governmental Authority shall, and the Maximum AmountAgent shall not have received any notice that litigation is pending or threatened which is likely to, (A) enjoin, prohibit or restrain the making of the Loans or (B) impose or result in the imposition of a Material Adverse Effect; and (ii) the Export-Related Borrowing Base. All Letters of Credit issued shall be in Dollars and all Disbursements shall be made in Dollars.
(b) Lender may agree Borrower has furnished on or before the Effective Date to make advances directly to Borrower or for Borrower's account during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Borrower shall request Agent each advance under the Loan by delivering to Lender a written request therefore, an Export-Related Borrowing Base Certificate, a copy of the Export Order(s) against which Borrower is requesting an advancefollowing, and such other information and documentation as Lender may require, in accordance with Section 6.10. Upon receipt of the above described information and documents by Lender, Lender shall make such advance within five (5) Business Days following Lender's determination that all conditions to the making of such advance have been satisfied. Each advance shall be conclusively deemed to have been made at the request of and sufficient copies for the benefit of Borrower (a) when credited to any deposit account of Borrower maintained with LenderLenders, or (b) when advanced in accordance with the instructions of an authorized Person. Lender, at its option, may set a cutoff time, after which all requests for advances under the Loan will be treated as having been requested on the next succeeding Business Day.
(c) Lender may agree to issue Letters of Credit on behalf of Borrower or for Borrower's account from time to time during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Standby Letters of Credit may be issued for Borrower's account for use as a performance bond, which Standby Letters of Credit can be drawn upon by Buyers only if Borrower fails to perform its obligations with respect to the relevant Export Order. Each Disbursement to fund a drawing under a Standby Letter of Credit shall conclusively be deemed to have been made when advanced in accordance with a draw request or instructions of an authorized Person. Each Letter of Credit will be in form and substance satisfactory to Lender the Agent and if approved for issuance by Lender in its sole discretion, will be issued by Lender as soon as practicable following the Lenders:
(a) Lender's receipt Copies, certified by the Secretary or Assistant Secretary of the Borrower and each Guarantor, of its articles or certificate of incorporation (which copies for the Borrower shall be certified as of a completed Letter recent date by the appropriate governmental officer in its respective jurisdiction of Credit Applicationincorporation), an Exportits by-Related Borrowing Base Certificatelaws and of its Board of Directors' resolutions (and resolutions of other bodies, a copy if any are deemed necessary by counsel for any Lender) authorizing the execution of the Export Order with respect to which Borrower is requesting a Letter of Credit, and such other information and documentation as Lender may require, in accordance with Section 6.10; and Loan Documents;
(b) Lender's determination that all conditions An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower and each Guarantor, which shall identify by name and title and bear the signature of the officers of the Borrower and Guarantors authorized to issuing such Letter sign the Loan Documents and, in the case of Credit have been satisfied, including but not limited to the Borrower's obligation , to provide request Loans and maintain adequate collateral in the amount equivalent to twenty-five percent (25%) of the undrawn amount of each Letter of Credit issued hereunder. In no event shall (i) the expiry date of any Letter of Credit be later than twelve (12) months from the date of issuance of such Letter of Credit. Lender shall not be requested to issue during the last sixty (60) days of the Credit Period any Letter of Credit which will expire after the Stated Final Disbursement Date unless Lender agrees in writing to a renewal of the Loan, or Ex-Im Bank's prior written approval of the issuance of such Letter of Credit is obtained.
(d) The terms and conditions of each Letter of Credit Application delivered by Borrower and accepted by Lender hereunder, including without limitation terms related to reimbursement of amounts drawn and the payment of fees and interest, are incorporated herein by this reference; provided, however, that (a) no provisions subjecting Lender and Borrower to arbitration or other dispute resolution provisions contained in any Letter of Credit Application shall be incorporated into this Agreement or applicable to Letters of Credit issued pursuant to this Agreementhereunder, and (b) to upon which certificate the extent that there is any conflict between the terms and conditions of any Letter of Credit Application and this Agreement, the terms of this Agreement shall prevail, except for (i) definitions contained in any Letter of Credit Application, (ii) if there is any provision contained in any Letter of Credit Application which subjects the Letter of Credit issued pursuant thereto to the UCP, the UCP shall prevail and (iii) if there is any provision contained in any Letter of Credit Application for a Standby Letter of Credit which subjects the Standby Letter of Credit issued pursuant thereto to the ISP, the ISP shall prevail.
(e) The outstanding principal balance of Disbursements hereunder Lenders shall be evidenced by the Note and shall be repaid as set forth in Section 2.3 below.
(f) Interest on the outstanding principal balance entitled to rely until informed of the Note shall accrue and be payable as set forth in Section 2.5 below.
(g) If the Lender determines that the introduction of any Requirement of Law, or any change in any Requirement of Lawwriting by the Borrower;
(c) A certificate, in form and substance satisfactory to the Agent, signed by the chief financial officer or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for the Lender to make the Disbursements and have interest accruing thereon on the basis treasurer of the LIBOR Rate, then, on notice thereof by the Lender to the Borrower, the Disbursements shall thereafter accrue interest at the CB Floating Rate until the Bank notifies the Borrower that the circumstances giving rise to such determination no longer exist. If the Bank determines that for any reason adequate and reasonable means do not exist for determining the LIBOR Rate for any LIBOR Period, or that the LIBOR Rate does not adequately and fairly reflect the cost to the Bank of making or maintaining the Disbursements, (i) stating that on the Bank will promptly so notify the BorrowerEffective Date no Default or Unmatured Default has occurred and is continuing, and (ii) thereafter, setting forth the obligation calculation of the Bank to make or maintain the Disbursements with interest accruing thereon on the basis Leverage Ratio as of September 30, 2000;
(d) A written opinion of the LIBOR Rate Borrower's and Guarantors' general counsel and outside counsel, addressed to the Agent and the Lenders, in substantially the form attached as Exhibit G hereto;
(e) Revolving Notes payable to the order of each of the applicable Lenders dated February 11, 1998;
(f) A Swing Line Note payable to the order of Bank One dated February 11, 1998;
(g) Written money transfer instructions reasonably requested by the Agent, addressed to the Agent and signed by an Authorized Officer;
(h) The Guaranty executed by each of the Guarantors;
(i) The Pledge Agreements executed by the Borrower in connection with which the Borrower shall be suspended until have delivered stock certificates, stock powers and UCC-1 financing statements;
(j) The Security Agreements executed by Borrower and each of its Subsidiaries, together with all financing statements and other documents, agreements and instruments required by the Agent in connection therewith;
(k) The payment of an amendment fee in the amount of $875,000 to the Agent for the benefit of each Lender revokes ratably in proportion to such notice Lender's respective Pro Rata Share together with such other fees as the Borrower has agreed in writingwriting to pay to the Agent;
(l) The closing of the modification of the Securitization Facility on terms satisfactory to the Lenders, including an extension of the Securitization Facility for 365 days; and
(m) Such other documents as the Agent or any Lender or its counsel may have reasonably requested.
Appears in 1 contract
Samples: Credit Agreement (Metals Usa Inc)
Advances and Letters of Credit. (a) Subject to Each Borrowing of Revolving Credit Loans shall be made upon the provisions of this Agreement, including without limitation the satisfaction irrevocable written notice of the conditions described Borrower in Article IIIthe form of a Notice of Borrowing (which notice must be received by the Bank prior to 11:00 a.m. (Houston, Lender agrees to establish a Revolving Loan Facility pursuant to which Lender may, in its sole discretion upon request of Borrower, make and incur Credit Accommodations in support of Export Orders, provided the Credit Accommodation Amount at any time shall not exceed the lesser of Texas time) (i) three (3) Business Days prior to the Maximum Amountrequested borrowing date, in the case of Eurodollar Rate Loans, and (ii) one (1) Business Day prior to the Export-Related requested borrowing date, in the case of Base Rate Loans, specifying:
(1) the total amount of the Borrowing Base. All Letters of Credit issued which shall be in an aggregate minimum principal amount of (A) One Million Dollars ($1,000,000), in the case of Eurodollar Rate Loans, and all Disbursements (B) Five Hundred Thousand Dollars ($500,000), in the case of Base Rate Loans, and, in either case, in an integral multiple of One Hundred thousand Dollars ($100,000) above such amount;
(2) the requested borrowing date which shall be a Business Day;
(3) whether the Borrowing is to be a Revolving Credit Loan comprised of Eurodollar Rate Loans or Base Rate Loans, and the amount of each in conformance with Section 3.2 above; and
(4) the duration of the Interest Period applicable to such Loans included in such notice, subject to the definition of Interest Period. If the Notice of Borrowing shall fail to specify the duration of the Interest Period for any Borrowing comprised of Eurodollar Rate Loans, such Interest Period shall be three months; provided, however, that with respect to the Borrowing to be made in Dollarson the Closing Date, the Notice of Borrowing shall be delivered to the Bank as aforesaid not later than 11:00 a.m. (Houston, Texas time) one (1) Business Day before the Closing Date and such Borrowing will consist of Base Rate Loans only.
(b) Lender may agree to make advances directly to Borrower or for Borrower's account during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Borrower shall request each advance under the Loan by delivering to Lender a written request therefore, an Export-Related Borrowing Base Certificate, a copy of the Export Order(s) against which Borrower is requesting an advance, and such other information and documentation as Lender may require, in accordance with Section 6.10. Upon receipt of the above described information Notice of Borrowing, the Agent shall promptly notify each Bank thereof and documents by Lender, Lender shall make such advance within five (5) Business Days following Lender's determination that all conditions to of the making amount of such advance have been satisfied. Each advance shall be conclusively deemed to have been made at Bank's Commitment Percentage of the request of and for the benefit of Borrower (a) when credited to any deposit account of Borrower maintained with Lender, or (b) when advanced in accordance with the instructions of an authorized Person. Lender, at its option, may set a cutoff time, after which all requests for advances under the Loan will be treated as having been requested on the next succeeding Business DayBorrowing.
(c) Lender may agree to issue Letters Each Bank will, in the case of each Borrowing consisting of a Revolving Credit on behalf Loan, make the amount of Borrower or for Borrower's account from time to time during its Commitment Percentage of the Credit Period, it being expressly agreed that Lender has no commitment to do so. Standby Letters of Credit may be issued for Borrower's account for use as a performance bond, which Standby Letters of Credit can be drawn upon by Buyers only if Borrower fails to perform its obligations with respect Borrowing available to the relevant Export OrderAgent for the account of the Borrower at the office specified by the Agent in Section 11.8 for payment by 10:00 a.m. (Houston, Texas time) on the borrowing date requested by the Borrower in funds immediately available to the Agent. Unless any applicable condition specified in Article 4 has not been satisfied, the proceeds of all such Loans will then be made available to the Borrower by the Agent at such office by crediting the account of the Borrower on the books of the Agent with the aggregate of the amounts made available to the Agent by the Banks and in like funds as received by the Agent.
(d) The provisions of Section 3.3(a) notwithstanding, if the Borrower shall not have given a timely notice of a Borrowing to be made on the last day of any Interest Period for outstanding Eurodollar Rate Loans, then unless the Bank shall have received notice that the Borrower elects not to make a Borrowing on such day (such notice to have been received at least two Business Days prior to such day) the Bank shall be deemed to have received a Notice of Borrowing from the Borrower requesting Base Rate Loans to be made on such day in an amount equal to the amount of such outstanding Eurodollar Rate Loans reduced to the extent necessary to reflect any reductions of the Commitments on or prior to such day.
(e) After giving effect to any Borrowing, there may not be more than five (5) different Interest Periods in effect.
(i) Each Disbursement to fund a drawing under a Standby Letter of Credit shall conclusively be deemed to have been made when advanced Issued upon receipt by the Issuing Bank of a written request of the Borrower (a "Credit Request") in accordance substantially the form of Exhibit F together with a draw request or instructions of an authorized Person. Each duly executed Letter of 38 Credit will be in form and substance satisfactory Agreement not later than 11:00 a.m. (Houston, Texas time) three (3) Business Days prior to Lender and if approved the date set for issuance by Lender in its sole discretion, will be issued by Lender as soon as practicable following (a) Lender's receipt the Issuance of a completed Letter of Credit Application, an Export-Related Borrowing Base Certificate, a copy of the Export Order with respect to which Borrower is requesting a such Letter of Credit, and such other information and documentation as Lender may require, in accordance with Section 6.10; and (b) Lender's determination that all conditions to issuing such Letter of Credit have been satisfied, including but not limited to . The Agent will advise the Borrower's obligation to provide and maintain adequate collateral in the amount equivalent to twenty-five percent (25%) Banks of the undrawn face amount of each Letter of Credit requested within two (2) Business Days of its receipt of the Borrower's request for a Letter of Credit.
(ii) Each Credit Request shall be irrevocable and shall specify, among other things:
(1) the proposed date of issuance of the Letter of Credit, which shall be a Business Day;
(2) the stated amount of the Letter of Credit;
(3) the date of expiration of the Letter of Credit;
(4) the name and address of the beneficiary of the Letter of Credit;
(5) the documents to be presented by the beneficiary of the Letter of Credit in case of any drawing thereunder;
(6) the full text of any certificate to be presented by the beneficiary in case of any drawing thereunder;
(7) the purpose of the Letter of Credit; and (8) the aggregate amount of (y) Credit Exposure (including the requested Letter of Credit) to be existing on the date of Issuance of such Letter of Credit, and (z) all Revolving Credit Loans to be outstanding on the date of Issuance of such Letter of Credit; and shall contain a certification to the Issuing Bank that the Issuance of such Letter of Credit will not cause the sum of the amounts referred to in clause (8) (y) and (8) (z) above to exceed the aggregate amount of Borrowings and Credit Exposure permitted pursuant to Section 3.2 of this Agreement.
(iii) Any request for amendment to or extension of the expiry date of any previously issued hereunderLetter of Credit shall be submitted pursuant to a Credit Request by the Borrower to the Issuing Bank not later than two (2) Business Days prior to the date of the proposed amendment or extension. In no event The Agent shall (i) promptly notify the Banks of each request for an amendment to or renewal of any Letter of Credit. The Issuing Bank shall not amend or extend the expiry date of any Letter of Credit be later than twelve (12) months from if the date of issuance of such Letter of Credit. Lender shall not be requested to issue during the last sixty (60) days of the Credit Period any a new Letter of Credit which will expire after having the Stated Final Disbursement Date unless Lender agrees in writing to a renewal of the Loan, or Ex-Im Bank's prior written approval of the issuance of same terms and conditions as such Letter of Credit is obtained.
(das so amended or extended would be prohibited by any provision of Section 3.1 or 3.2(f) The terms and conditions of each Letter of Credit Application delivered by Borrower and accepted by Lender hereunder, including without limitation terms related to reimbursement of amounts drawn and the payment of fees and interest, are incorporated herein by this reference; provided, however, that (a) no provisions subjecting Lender and Borrower to arbitration or other dispute resolution provisions contained in any Letter of Credit Application shall be incorporated into this Agreement or applicable to Letters of Credit issued pursuant to this Agreement, and (b) to the extent that there is any conflict between the terms and conditions of any Letter of Credit Application and this Agreement, the terms of this Agreement shall prevail, except for (i) definitions contained in any Letter of Credit Application, (ii) if there is any provision contained in any Letter of Credit Application which subjects the Letter of Credit issued pursuant thereto to the UCP, the UCP shall prevail and (iii) if there is any provision contained in any Letter of Credit Application for a Standby Letter of Credit which subjects the Standby Letter of Credit issued pursuant thereto to the ISP, the ISP shall prevail.
(e) The outstanding principal balance of Disbursements hereunder shall be evidenced by the Note and shall be repaid as set forth in Section 2.3 below.
(f) Interest on the outstanding principal balance of the Note shall accrue and be payable as set forth in Section 2.5 below.
(g) If There shall be only one (1) Borrowing of the Lender determines that Term Loans and to the introduction extent the amount of any Requirement the Borrowing of Law, or any change in any Requirement of Law, or the Term Loan (as set forth in the interpretation or administration Notice of any Requirement 39 Borrowing) is less than the total Term Commitments, the Term Commitment of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for the Lender each Bank shall be automatically reduced by an amount equal to make the Disbursements and have interest accruing thereon on the basis such Bank's Term Commitment Percentage of the LIBOR Rate, then, on notice thereof by difference between the Lender to the Borrower, the Disbursements shall thereafter accrue interest at the CB Floating Rate until the Bank notifies the Borrower that the circumstances giving rise to such determination no longer exist. If the Bank determines that for any reason adequate and reasonable means do not exist for determining the LIBOR Rate for any LIBOR Period, or that the LIBOR Rate does not adequately and fairly reflect the cost to the Bank of making or maintaining the Disbursements, (i) the Bank will promptly so notify the Borrower, and (ii) thereafter, the obligation amount of the Bank to make or maintain the Disbursements with interest accruing thereon on the basis Borrowing of the LIBOR Rate shall be suspended until Term Loan (as set forth in the Lender revokes such notice in writingNotice of Borrowing) and the total Term Commitment.
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Advances and Letters of Credit. (a) Subject to the provisions of this Agreement, including without limitation the satisfaction of the conditions described in Article III, Lender agrees to establish a Revolving Loan Facility pursuant to which Lender may, in its sole discretion upon request of Borrower, make and incur Credit Accommodations in support of Export Orders, provided the Credit Accommodation Amount at any time The Lenders shall not exceed the lesser of (i) the Maximum Amount, and (ii) the Export-Related Borrowing Base. All be required to make any Advance or issue any Letters of Credit issued shall be in Dollars and all Disbursements shall be made in Dollars.
(b) Lender may agree unless the Borrower has furnished to make advances directly to Borrower or for Borrower's account during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Borrower shall request Administrative Agent each advance under the Loan by delivering to Lender a written request therefore, an Export-Related Borrowing Base Certificate, a copy of the Export Order(s) against which Borrower is requesting an advancefollowing, and such other information and documentation as Lender may require, in accordance with Section 6.10. Upon receipt of the above described information and documents by Lender, Lender shall make such advance within five (5) Business Days following Lender's determination that all conditions to the making of such advance have been satisfied. Each advance shall be conclusively deemed to have been made at the request of and sufficient copies for the benefit of Borrower (a) when credited to any deposit account of Borrower maintained with LenderLenders, or (b) when advanced in accordance with the instructions of an authorized Person. Lender, at its option, may set a cutoff time, after which all requests for advances under the Loan will be treated as having been requested on the next succeeding Business Day.
(c) Lender may agree to issue Letters of Credit on behalf of Borrower or for Borrower's account from time to time during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Standby Letters of Credit may be issued for Borrower's account for use as a performance bond, which Standby Letters of Credit can be drawn upon by Buyers only if Borrower fails to perform its obligations with respect to the relevant Export Order. Each Disbursement to fund a drawing under a Standby Letter of Credit shall conclusively be deemed to have been made when advanced in accordance with a draw request or instructions of an authorized Person. Each Letter of Credit will be in form and substance satisfactory to Lender the Administrative Agent and if approved for issuance by Lender in its sole discretion, will be issued by Lender as soon as practicable following (a) Lender's receipt of a completed Letter of Credit Application, an Export-Related Borrowing Base Certificate, a copy the Lenders: Copies of the Export Order with respect to which Borrower is requesting a Letter Certificate of Credit, and such Incorporation (or other information and documentation as Lender may require, in accordance with Section 6.10; and (b) Lender's determination that all conditions to issuing such Letter of Credit have been satisfied, including but not limited to the Borrower's obligation to provide and maintain adequate collateral in the amount equivalent to twenty-five percent (25%comparable constituent document) of the undrawn amount Borrower and each Material Domestic Subsidiary as of the Closing Date (collectively, the "Initial Loan Parties"), dated as of the Closing Date, together with all amendments and a certificate of good standing (or comparable document), both certified by the appropriate governmental officer in its jurisdiction of incorporation; Copies, certified by the Secretary, Assistant Secretary or authorized representative of each Letter of Credit issued hereunder. In no event shall (i) the expiry date of any Letter of Credit be later than twelve (12) months from the date of issuance of such Letter of Credit. Lender shall not be requested to issue during the last sixty (60) days of the Credit Period Borrower and each Material Domestic Subsidiary of their respective By-Laws (or other comparable governing document) and of their respective board of directors' or comparable resolutions (and resolutions of other governing bodies, if any Letter of Credit which will expire after are deemed necessary by counsel for any Lender) authorizing the Stated Final Disbursement Date unless Lender agrees in writing to a renewal execution of the LoanLoan Documents entered into by it; An incumbency certificate, executed by the Secretary, Assistant Secretary or Ex-Im Bank's prior written approval authorized representative of each of the issuance of such Letter of Credit is obtained.
(d) The terms and conditions of each Letter of Credit Application delivered by Borrower and accepted each Material Domestic Subsidiary, which shall identify by Lender hereunder, including without limitation terms related to reimbursement of amounts drawn name and title and bear the payment of fees and interest, are incorporated herein by this reference; provided, however, that (a) no provisions subjecting Lender and Borrower to arbitration or other dispute resolution provisions contained in any Letter of Credit Application shall be incorporated into this Agreement or applicable to Letters of Credit issued pursuant to this Agreement, and (b) to the extent that there is any conflict between the terms and conditions of any Letter of Credit Application and this Agreement, the terms of this Agreement shall prevail, except for (i) definitions contained in any Letter of Credit Application, (ii) if there is any provision contained in any Letter of Credit Application which subjects the Letter of Credit issued pursuant thereto to the UCP, the UCP shall prevail and (iii) if there is any provision contained in any Letter of Credit Application for a Standby Letter of Credit which subjects the Standby Letter of Credit issued pursuant thereto to the ISP, the ISP shall prevail.
(e) The outstanding principal balance of Disbursements hereunder shall be evidenced by the Note and shall be repaid as set forth in Section 2.3 below.
(f) Interest on the outstanding principal balance signature of the Note shall accrue and be payable as set forth in Section 2.5 below.
officers or authorized representatives of the applicable the Borrower or Material Domestic Subsidiary authorized to sign the Loan Documents (g) If the Lender determines that the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawfulincluding, for the Lender to make the Disbursements and have interest accruing thereon on the basis of the LIBOR Rate, then, on notice thereof by the Lender to the Borrower, the Disbursements officers thereof authorized to make borrowings hereunder), upon which certificate the Lenders shall thereafter accrue interest at be entitled to rely until informed of any change in writing by the CB Floating Rate until the Bank notifies applicable Initial Loan Party or the Borrower that the circumstances giving rise to such determination no longer exist. If the Bank determines that for any reason adequate on its behalf; A certificate, in form and reasonable means do not exist for determining the LIBOR Rate for any LIBOR Period, or that the LIBOR Rate does not adequately and fairly reflect the cost substance satisfactory to the Bank Administrative Agent, signed by an Authorized Officer of making or maintaining the Disbursements, (i) the Bank will promptly so notify the Borrower, certifying that on the Closing Date all the representations in this Agreement are true and correct (ii) thereafterunless such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct as of such date), no Default or Unmatured Default has occurred and is continuing and no material adverse change in the obligation business, condition (financial or otherwise), operations, properties or prospects of the Bank Borrower and its Subsidiaries (taken as a whole), or since December 31, 2002; Written opinion of Borrower's counsel, addressed to make or maintain the Disbursements with interest accruing thereon on Administrative Agent and the basis of Lenders, in substantially the LIBOR Rate shall be suspended until the Lender revokes such notice in writing.form attached hereto as Exhibit E;
Appears in 1 contract
Advances and Letters of Credit. (a) Subject to the provisions of this Agreement, including without limitation the satisfaction of the terms and conditions described in Article IIIhereof, Lender agrees to, from time to establish a Revolving Loan Facility pursuant to which Lender maytime until the Commitment Termination Date, in its sole discretion upon request of Borrower, make and incur Credit Accommodations in support of Export Orders, provided the Credit Accommodation Amount at any time shall not exceed the lesser of (i) make available advances (each, a “Revolving Credit Advance”) to or for the Maximum Amountbenefit of Borrower as provided for in this Section 2.1, and (ii) the Export-Related Borrowing Base. All Letters incur Letter of Credit issued shall be Obligations in Dollars and all Disbursements shall be made in Dollars.
(b) Lender may agree to make advances directly to Borrower or for Borrower's account during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Borrower shall request each advance under the Loan by delivering to Lender a written request therefore, an Export-Related Borrowing Base Certificate, a copy of the Export Order(s) against which Borrower is requesting an advance, and such other information and documentation as Lender may require, in accordance with Section 6.10. Upon receipt of the above described information and documents by Lender, Lender shall make such advance within five (5) Business Days following Lender's determination that all conditions to the making of such advance have been satisfied. Each advance shall be conclusively deemed to have been made at the request of and for the benefit respect of Borrower (a) when credited to any deposit account as provided for in Annex 13 and this Section 2.1 The aggregate amount of Borrower maintained with Lender, or (b) when advanced in accordance with the instructions of an authorized Person. Lender, at its option, may set a cutoff time, after which all requests for advances under the Loan will be treated as having been requested on the next succeeding Business Day.
(c) Lender may agree to issue Letters Revolving Credit Advances and Letter of Credit on behalf of Obligations outstanding shall not exceed at any time the Revolving Loan Commitment. Until the Commitment Termination Date, Borrower or for Borrower's account may from time to time during the borrow, repay and reborrow under this Section 2.1. Each Revolving Credit Period, it being expressly agreed that Lender has no commitment to do so. Standby Letters Advance or Letter of Credit may Obligation shall be issued for Borrower's account for use as a performance bondmade or incurred on notice by Borrower to the representative of Lender identified on Schedule 2.1 at the address specified thereon. Those notices must be actually received by Lender no later than (1) 10:00 a.m. (California time) on the Business Day of the proposed Revolving Credit Advance in the case of all Revolving Credit Advances, which Standby Letters of Credit can be drawn upon by Buyers only if Borrower fails to perform its obligations or (2) with respect to the relevant Export Order. Each Disbursement to fund a drawing under a Standby Letter of Credit shall conclusively be deemed to have been made when advanced in accordance with a draw request or instructions of an authorized Person. Each Letter of Credit will be in form and substance satisfactory to Lender and if approved for issuance by Lender in its sole discretionObligations, will be issued by Lender as soon as practicable following 10:00 a.m. (aCalifornia time) Lender's receipt of a completed Letter of Credit Application, an Export-Related Borrowing Base Certificate, a copy of on the Export Order with respect to date which Borrower is requesting a Letter of Credit, and such other information and documentation as Lender may require, in accordance with Section 6.10; and at least two (b2) Lender's determination that all conditions to issuing such Letter of Credit have been satisfied, including but not limited Business Days prior to the Borrower's obligation to provide and maintain adequate collateral in the amount equivalent to twenty-five percent (25%) of the undrawn amount of each Letter of Credit issued hereunder. In no event shall (i) the expiry date of any Letter of Credit be later than twelve (12) months from the date of issuance of such Letter of Credit. Lender shall not be requested to issue during the last sixty (60) days of the Credit Period any Letter of Credit which will expire after the Stated Final Disbursement Date unless Lender agrees in writing to a renewal of the Loan, or Ex-Im Bank's prior written approval of the issuance incurrence of such Letter of Credit is obtained.
Obligations. Each such notice (d) The terms and conditions a “Notice of each Revolving Credit Advance” or “Notice of Letter of Credit Application delivered Request,” as the case may be) must be given in writing (by Borrower telecopy or overnight courier) substantially in the form of Exhibit 2.1-1 or Exhibit 2.1-2, as the case may be, and accepted shall include the information required in such Exhibit and such other information as may be required by Lender hereunderLender. In addition, including without limitation terms related to reimbursement a Notice of amounts drawn and the payment of fees and interest, are incorporated herein by this reference; provided, however, that (a) no provisions subjecting Lender and Borrower to arbitration or other dispute resolution provisions contained in any Letter of Credit Application Request shall be incorporated into this Agreement or applicable to Letters accompanied by the form of Credit issued pursuant to this Agreement, and (b) to the extent that there is any conflict between the terms and conditions of any Letter of Credit Application and this Agreement, the terms of this Agreement shall prevail, except for (i) definitions contained in any Letter of Credit Application, (ii) if there is any provision contained in any Letter of Credit Application which subjects the Letter of Credit issued pursuant thereto (which shall be acceptable to the UCPL/C Issuer) to be guaranteed. Notwithstanding anything contained herein to the contrary, the UCP shall prevail and (iii) if there is any provision contained in any Letter of Credit Application for a Standby Letter of Credit which subjects the Standby Letter of Credit issued applications by Borrower and approvals by Lender may be made and transmitted pursuant thereto to the ISP, the ISP shall prevail.
(e) The outstanding principal balance of Disbursements hereunder shall be evidenced electronic codes and security measures mutually agreed upon and established by the Note and shall be repaid as set forth in Section 2.3 below.
(f) Interest on the outstanding principal balance of the Note shall accrue and be payable as set forth in Section 2.5 below.
(g) If the Lender determines that the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for the Lender to make the Disbursements and have interest accruing thereon on the basis of the LIBOR Rate, then, on notice thereof by the Lender to the among Borrower, Lender and the Disbursements shall thereafter accrue interest at the CB Floating Rate until the Bank notifies the Borrower that the circumstances giving rise to such determination no longer exist. If the Bank determines that for any reason adequate and reasonable means do not exist for determining the LIBOR Rate for any LIBOR Period, or that the LIBOR Rate does not adequately and fairly reflect the cost to the Bank of making or maintaining the Disbursements, (i) the Bank will promptly so notify the Borrower, and (ii) thereafter, the obligation of the Bank to make or maintain the Disbursements with interest accruing thereon on the basis of the LIBOR Rate shall be suspended until the Lender revokes such notice in writingL/C Issuer.
Appears in 1 contract
Advances and Letters of Credit. (a) Subject to and upon the provisions of this AgreementAgreement and relying upon the representations and warranties herein set forth, including without limitation the satisfaction of the conditions described in Article III, Lender agrees to establish a Revolving Loan Facility pursuant to which Lender may, in its sole discretion upon request of Borrower, make and incur Credit Accommodations in support of Export Orders, provided the Credit Accommodation Amount at any time shall and from time to time to make Advances to the Borrowers and issue Letters of Credit for the account of the Borrowers from the date hereof until the earlier of the Revolving Credit Expiration Date or the date on which this Revolving Credit Facility is terminated pursuant to Section 7 hereof, in an aggregate principal amount at any time outstanding not to exceed the lesser of (i) the Maximum Amount, and Revolving Credit Amount or (ii) the Export-Related Borrowing Base. All Letters of Credit issued shall be in Dollars and all Disbursements shall be made in Dollars.
(b) Lender may agree to make advances directly to Borrower or for Borrower's account during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Borrower shall request each advance under the Loan by delivering to Lender a written request therefore, an Export-Related Borrowing Base Certificate, a copy of the Export Order(s) against which Borrower is requesting an advance, and such other information and documentation as Lender may require, in accordance with Section 6.10. Upon receipt of the above described information and documents by Lender, Lender shall make such advance within five (5) Business Days following Lender's determination that all conditions to the making of such advance have been satisfied. Each advance shall be conclusively deemed to have been made at the request of and for the benefit of Borrower (a) when credited to any deposit account of Borrower maintained with Lender, or (b) when advanced in accordance with the instructions of an authorized Person. Lender, at its option, may set a cutoff time, after which all requests for advances under the Loan will be treated as having been requested on the next succeeding Business Day.
(c) Lender may agree to issue Letters of Credit on behalf of Borrower or for Borrower's account from time to time during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Standby Letters of Credit may be issued for Borrower's account for use as a performance bond, which Standby Letters of Credit can be drawn upon by Buyers only if Borrower fails to perform its obligations with respect to the relevant Export Order. Each Disbursement to fund a drawing under a Standby Letter of Credit shall conclusively be deemed to have been made when advanced in accordance with a draw request or instructions of an authorized Person. Each Letter of Credit will be in form and substance satisfactory to Lender and if approved for issuance by Lender in its sole discretion, will be issued by Lender as soon as practicable following (a) Lender's receipt of a completed Letter of Credit Application, an Export-Related Borrowing Base Certificate, a copy of the Export Order with respect to which Borrower is requesting a Letter of Credit, and such other information and documentation as Lender may require, in accordance with Section 6.10; and (b) Lender's determination that all conditions to issuing such Letter of Credit have been satisfied, including but not limited to the Borrower's obligation to provide and maintain adequate collateral in the amount equivalent to twenty-five percent (25%) of the undrawn amount of each Letter of Credit issued hereunder. In no event shall (i) the expiry date of any Letter of Credit be later than twelve (12) months from the date of issuance of such Letter of Credit. Lender shall not be requested to issue during the last sixty (60) days of the Credit Period any Letter of Credit which will expire after the Stated Final Disbursement Date unless Lender agrees in writing to a renewal of the Loan, or Ex-Im Bank's prior written approval of the issuance of such Letter of Credit is obtained.
(d) The terms and conditions of each Letter of Credit Application delivered by Borrower and accepted by Lender hereunder, including without limitation terms related to reimbursement of amounts drawn and the payment of fees and interest, are incorporated herein by this reference; provided, however, that (a) in no provisions subjecting Lender and Borrower to arbitration or other dispute resolution provisions contained in any event shall the total Letter of Credit Application Exposure exceed $2,000,000 at any one time. KEYW and Subsidiaries Credit and Security Agreement In no event shall the Lender be incorporated into obligated to make an Advance or issue a Letter of Credit hereunder if a Default shall have occurred and be continuing. Unless sooner terminated pursuant to other provisions of this Agreement or applicable Agreement, this Revolving Credit Facility and the obligation of the Lender to make Advances and issue Letters of Credit issued pursuant to this Agreementhereunder shall automatically terminate on the Revolving Credit Expiration Date without further action by, or notice of any kind from, the Lender. Within the limitations set forth herein and (b) subject to the extent that there is any conflict between the terms and conditions provisions of any Letter of Credit Application and this Agreement, the terms Borrowers may borrow, repay and re-borrow under this Revolving Credit Facility. The fact that there may be no Advances or Letters of Credit outstanding at any particular time shall not affect the continuing validity of this Agreement shall prevailAgreement. All Advances must be in the minimum amount of One Hundred Thousand Dollars ($100,000) and integral multiples of Fifty Thousand Dollars ($50,000) in excess thereof. All Advances requested by the Borrowers are to be in writing pursuant to a written request ("Advance/Continuation Request") in the form of Exhibit B attached hereto. Each such Advance/Continuation Request must be received by the Lender not later than 11:00 a.m., except for Baltimore, Maryland time, three (i3) definitions contained in any Letter of Credit Application, (ii) if there is any provision contained in any Letter of Credit Application which subjects the Letter of Credit issued pursuant thereto Business Days prior to the UCPrequested date of any Advance and must specify the amount of the Advance and the Interest Period. If no Interest Period is specified, the UCP Interest Period shall prevail be deemed to be a one month period. Upon receiving an Advance/Continuation Request for an Advance in accordance with the foregoing sentence, and (iii) if there is any provision contained in any Letter of Credit Application for a Standby Letter of Credit which subjects the Standby Letter of Credit issued pursuant thereto subject to the ISP, the ISP shall prevail.
(e) The outstanding principal balance of Disbursements hereunder shall be evidenced by the Note and shall be repaid as conditions set forth in Section 2.3 below.
(f) Interest this Agreement, the Lender shall make the requested Advance available to the Borrowers as soon as is reasonably practicable thereafter on the outstanding principal balance of day the Note shall accrue and requested Advance is to be payable as set forth in Section 2.5 below.
made (g) If the Lender determines that the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for the Lender to make the Disbursements and have interest accruing thereon on the basis of the LIBOR Rate, then, on notice thereof by the Lender to the Borrower, the Disbursements shall thereafter accrue interest at the CB Floating Rate until the Bank notifies the Borrower that the circumstances giving rise to such determination no longer exist. If the Bank determines that for any reason adequate and reasonable means do not exist for determining the LIBOR Rate for any LIBOR Period, or that the LIBOR Rate does not adequately and fairly reflect the cost to the Bank of making or maintaining the Disbursements, (i) the Bank will promptly so notify the Borrower, and (ii) thereafter, the obligation of the Bank to make or maintain the Disbursements with interest accruing thereon on the basis of the LIBOR Rate which shall be suspended until the Lender revokes such notice in writinga Business Day).
Appears in 1 contract
Advances and Letters of Credit. (a) a. Subject to the provisions of this Agreement, including without limitation the satisfaction of the conditions described in Article III, Lender agrees to establish a Revolving Loan Facility pursuant to which Lender may, in its sole discretion upon request of Borrower, and make and incur Credit Accommodations in support of the manufacture, production, purchase and sale of items and in support of Export OrdersOrders as hereinafter provided, provided the aggregate Credit Accommodation Amount outstanding at any time shall not exceed the lesser at such time of (i) the Maximum Amount, and (iia) the Export-Related Borrowing BaseBase and (b) the Maximum Amount. All Letters of Credit issued shall be in Dollars and all Disbursements hereunder shall be made in Dollars. Borrower acknowledges that (i) subject to the limits set forth in Section 2.15 of the Borrower Agreement, Indirect Exports may be included as Items, and (ii) only upon satisfaction of certain requirements and conditions as set forth in Section 2.16 of the Borrower Agreement, Export-Related Overseas Accounts Receivable and Export-Related Overseas Inventory may be included in the Export-Related Borrowing Base.
(b) b. Lender may agree agrees to make advances directly to Borrower or for Borrower's ’s account during the Credit Commitment Period. To request a Revolving Borrowing, it being expressly agreed that Lender has no commitment to do so. the Borrower Representative shall request each advance under notify the Loan by delivering to Lender a written request therefore, an Export-Related Borrowing Base Certificate, a copy of the Export Order(s) against which Borrower is requesting an advance, and such other information and documentation as Lender may require, in accordance with Section 6.10. Upon receipt of the above described information and documents by Lender, Lender shall make such advance within five (5) Business Days following Lender's determination that all conditions to the making Administrative Agent of such advance have been satisfied. Each advance shall be conclusively deemed to have been made at request either in writing (delivered by hand or facsimile) in a form approved by the request of Lender and for signed by the benefit of Borrower Representative or by telephone (a) when credited to any deposit account in the case of Borrower maintained with Lendera Eurodollar Borrowing, not later than noon, Chicago time, three Business Days before the date of the proposed Borrowing or (b) when advanced in accordance with the instructions case of an authorized Person. LenderABR Borrowing, at its optionnot later than noon, may set a cutoff Chicago time, after which all requests for advances under the Loan will be treated as having been requested on the next succeeding date of the proposed Borrowing; provided that any such notice of an ABR Borrowing to finance the reimbursement of a Disbursement with respect to a Letter of Credit as contemplated by Section 2.1g may be given not later than 9:00 a.m., Chicago time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or facsimile to the Lender of a written Borrowing Request in a form approved by the Administrative Agent and signed by the Borrower Representative. Each such telephonic and written Borrowing Request shall specify the following information:
(i) the name of the applicable Borrower;
(ii) the aggregate amount of the requested Borrowing and a breakdown of the separate wires comprising such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and
(v) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period.” If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Revolving Borrowing, then the applicable Borrower(s) shall be deemed to have selected an Interest Period of one month’s duration.
(c) c. [INTENTIONALLY OMITTED]
d. Lender may agree agrees to issue and fund drawings made on Letters of Credit on behalf of Borrower or for Borrower's ’s or Holdings’ account from time to time during the Credit Commitment Period, it being expressly agreed that Lender has no commitment to do so. Standby Letters of Credit may shall be issued for Borrower's account ’s or Holdings’ account, for use as a bid bonds, performance bondbonds or payment guarantees, which Standby Letters of Credit can be drawn upon by Buyers only if Borrower fails to perform its obligations with respect to the relevant Export OrderOrder(s). Each Disbursement to fund a drawing under a Standby Letter of Credit shall conclusively be deemed to have been made when advanced in accordance with a draw request or instructions of an authorized Person. Each Letter of Credit will be in form and substance satisfactory to Lender and if approved for issuance by Lender in its sole discretion, will be issued by Lender as soon as practicable following (a) Lender's ’s receipt of a completed Letter of Credit Application, an Export-Related Borrowing Base Certificate, a copy of the Export Order Order(s) with respect to which Borrower is requesting a Letter of Credit, and such other information and documentation as Lender may require, in accordance with Section 6.106.4; and (b) Lender's ’s determination that all conditions to issuing such Letter of Credit have been satisfied, including but not limited . Lender shall reserve from the applicable Export-Related Borrowing Base an amount equal to the Borrower's obligation to provide and maintain adequate collateral in the amount equivalent to twenty-five percent (at least 25%) % of the undrawn outstanding face amount of each Letter of Credit issued hereunder. In no event shall (i) the expiry date length of the term of any Letter of Credit be later more than twelve the shorter of (12i) 12 months from the date of issuance of such the Letter of CreditCredit or (ii) the length of the Commitment Period (for this purpose the Commitment Period is deemed to end on the Final Disbursement Date). If the Loan is a Revolving Loan Facility (including a Transaction Specific Revolving Loan Facility), Lender shall not be requested obligated to issue during the last sixty (60) days of the Credit Commitment Period (for this purpose the Commitment Period is deemed to end on the Final Disbursement Date) any Letter of Credit which will expire after the Stated Final Disbursement Date unless Lender agrees in writing to a an Extension or other renewal or extension of the Loan, or Ex-Im Bank's ’s prior written approval of the issuance of such Letter of Credit is obtained.
(d) e. The terms and conditions of each Letter of Credit Application delivered by Borrower and accepted by Lender hereunder, including without limitation terms related to reimbursement of amounts drawn and the payment of fees and interest, are incorporated herein by this reference; provided, however, that (a) no provisions subjecting Lender and Borrower to arbitration or other dispute resolution provisions contained in any Letter of Credit Application shall be incorporated into this Agreement or applicable to Letters of Credit issued pursuant to this Agreement, and (b) to the extent that there is any conflict between the terms and conditions of any Letter of Credit Application and this Agreement, the terms of this Agreement shall prevail, except for (i) definitions contained in any Letter of Credit Application, and (ii) if there is any provision contained in any Letter of Credit Application which subjects the Letter of Credit issued pursuant thereto to the UCP.
f. To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the UCP Borrower Representative shall prevail hand deliver or facsimile (or transmit by electronic communication, if arrangements for doing so have been approved by the Lender) to the Lender (prior to 9:00 am, Chicago time, at least three Business Days prior to the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the Lender, the applicable Borrower also shall submit a letter of credit application on the Lender’s standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrowers shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i) the LC Exposure plus the Domestic LC Exposure shall not exceed $10,000,000 and (iiiii) the total Revolving Exposures shall not exceed the lesser of the Maximum Amount and the Export-Related Borrowing Base.
g. If the Lender shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Lender an amount equal to such LC Disbursement not later than 11:00 a.m., Chicago time, on the date that such LC Disbursement is made, if there the Borrowers Representative shall have received notice of such LC Disbursement prior to 9:00 a.m., Chicago time, on such date, or, if such notice has not been received by the Borrower Representative prior to such time on such date, then not later than 11:00 a.m., Chicago time, on (i) the Business Day that the Borrower Representative receives such notice, if such notice is received prior to 9:00 a.m., Chicago time, on the day of receipt, or (ii) the Business Day immediately following the day that the Borrower Representative receives such notice, if such notice is not received prior to such time on the day of receipt; provided that the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.1b that such payment be financed with an ABR Borrowing in an equivalent amount and, to the extent so financed, the Borrowers’ obligation to make such payment shall be discharged and replaced by the resulting ABR Borrowing.
h. The Borrowers’ joint and several obligation to reimburse LC Disbursements as provided in paragraph g of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any provision contained in and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit Application for or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Standby Letter of Credit which subjects proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the Standby Lender under a Letter of Credit issued pursuant thereto against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrowers’ obligations hereunder. The Lender shall have no liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Lender; provided that the foregoing shall not be construed to excuse the Lender from liability to the ISPBorrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by any Borrower that are caused by the Lender’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the Lender (as finally determined by a court of competent jurisdiction), the ISP Lender shall prevailbe deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Lender may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(e) The outstanding principal balance of Disbursements hereunder shall be evidenced by the Note and shall be repaid as set forth in Section 2.3 below.
(f) Interest on the outstanding principal balance of the Note shall accrue and be payable as set forth in Section 2.5 below.
(g) i. If the Lender determines that the introduction of shall make any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for the Lender to make the Disbursements and have interest accruing thereon on the basis of the LIBOR RateLC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburse such LC Disbursement, at the rate per annum then applicable to ABR Advances; provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph g of this Section, then Section 2.7(c) shall apply.
j. If any Event of Default shall occur and be continuing, on the Business Day that the Borrower Representative receives notice thereof from the Lender demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account with the Lender (the “LC Collateral Account”), an amount in cash equal to 105% of the LC Exposure as of such date plus accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to any Borrower described in Section 7.1(f). Such deposit shall be held by the Lender as collateral for the payment and performance of the Borrower’s Obligations. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account and the Borrower hereby grants the Lender a security interest in the LC Collateral Account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Lender and at the Borrowers’ risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied to reimburse the Lender for LC Disbursements for which it has not been reimbursed and, to the Borrowerextent not so applied, shall be held for the Disbursements shall thereafter accrue interest at satisfaction of the CB Floating Rate until the Bank notifies reimbursement obligations of the Borrower that for the circumstances giving rise LC Exposure at such time or, if the maturity of the Loan has been accelerated, be applied to such determination no longer existsatisfy other Borrower’s Obligations. If the Bank determines that for any reason adequate and reasonable means do not exist for determining Borrowers are required to provide an amount of cash collateral hereunder as a result of the LIBOR Rate for any LIBOR Periodoccurrence of an Event of Default, or that the LIBOR Rate does not adequately and fairly reflect the cost such amount (to the Bank of making or maintaining the Disbursements, (iextent not applied as aforesaid) the Bank will promptly so notify the Borrower, and (ii) thereafter, the obligation of the Bank to make or maintain the Disbursements with interest accruing thereon on the basis of the LIBOR Rate shall be suspended until returned to the Lender revokes Borrowers within three Business Days after all such notice in writingEvents of Default have been cured or waived.
Appears in 1 contract
Advances and Letters of Credit. (a) Subject to the provisions of this Agreement, including without limitation the satisfaction of the conditions described in Article III, Lender agrees to establish a Revolving Loan Facility pursuant to which Lender may, in its sole discretion upon request of Borrower, make and incur Credit Accommodations in support of Export Orders, provided the Credit Accommodation Amount at any time shall not exceed the lesser of (i) the Maximum Amount, and (ii) the Export-Related Borrowing Base. All Letters of Credit issued shall be in Dollars and all Disbursements shall be made in Dollars.
(b) Lender may agree to make advances directly to Borrower or for Borrower's ’s account during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Borrower shall request each advance under the Loan by delivering to Lender a written request therefore, an Export-Related Borrowing Base Certificate, a copy of the Export Order(s) against which Borrower is requesting an advance, and such other information and documentation as Lender may require, in accordance with Section 6.10. Upon receipt of the above described information and documents by Lender, Lender shall make such advance within five (5) Business Days following Lender's ’s determination that all conditions to the making of such advance have been satisfied. Each advance shall be conclusively deemed to have been made at the request of and for the benefit of Borrower (a) when credited to any deposit account of Borrower maintained with Lender, or (b) when advanced in accordance with the instructions of an authorized Person. Lender, at its option, may set a cutoff time, after which all requests for advances under the Loan will be treated as having been requested on the next succeeding Business Day.
(c) Lender may agree to issue Letters of Credit on behalf of Borrower or for Borrower's ’s account from time to time during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Standby Letters of Credit may be issued for Borrower's ’s account for use as a performance bond, which Standby Letters of Credit can be drawn upon by Buyers only if Borrower fails to perform its obligations with respect to the relevant Export Order. Each Disbursement to fund a drawing under a Standby Letter of Credit shall conclusively be deemed to have been made when advanced in accordance with a draw request or instructions of an authorized Person. Each Letter of Credit will be in form and substance satisfactory to Lender and if approved for issuance by Lender in its sole discretion, will be issued by Lender as soon as practicable following (a) Lender's ’s receipt of a completed Letter of Credit Application, an Export-Related Borrowing Base Certificate, a copy of the Export Order with respect to which Borrower is requesting a Letter of Credit, and such other information and documentation as Lender may require, in accordance with Section 6.10; and (b) Lender's ’s determination that all conditions to issuing such Letter of Credit have been satisfied, including but not limited to the Borrower's ’s obligation to provide and maintain adequate collateral in the amount equivalent to twenty-five percent (25%) of the undrawn amount of each Letter of Credit issued hereunder. In no event shall (i) the expiry date of any Letter of Credit be later than twelve (12) months from the date of issuance of such Letter of Credit. Lender shall not be requested to issue during the last sixty (60) days of the Credit Period any Letter of Credit which will expire after the Stated Final Disbursement Date unless Lender agrees in writing to a renewal of the Loan, or Ex-Im Bank's ’s prior written approval of the issuance of such Letter of Credit is obtained.
(d) The terms and conditions of each Letter of Credit Application delivered by Borrower and accepted by Lender hereunder, including without limitation terms related to reimbursement of amounts drawn and the payment of fees and interest, are incorporated herein by this reference; provided, however, that (a) no provisions subjecting Lender and Borrower to arbitration or other dispute resolution provisions contained in any Letter of Credit Application shall be incorporated into this Agreement or applicable to Letters of Credit issued pursuant to this Agreement, and (b) to the extent that there is any conflict between the terms and conditions of any Letter of Credit Application and this Agreement, the terms of this Agreement shall prevail, except for (i) definitions contained in any Letter of Credit Application, (ii) if there is any provision contained in any Letter of Credit Application which subjects the Letter of Credit issued pursuant thereto to the UCP, the UCP shall prevail and (iii) if there is any provision contained in any Letter of Credit Application for a Standby Letter of Credit which subjects the Standby Letter of Credit issued pursuant thereto to the ISP, the ISP shall prevail.
(e) The outstanding principal balance of Disbursements hereunder shall be evidenced by the Note and shall be repaid as set forth in Section 2.3 below.
(f) Interest on the outstanding principal balance of the Note shall accrue and be payable as set forth in Section 2.5 below.
(g) If the Lender determines that the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for the Lender to make the Disbursements and have interest accruing thereon on the basis of the LIBOR Rate, then, on notice thereof by the Lender to the Borrower, the Disbursements shall thereafter accrue interest at the CB Floating Rate until the Bank notifies the Borrower that the circumstances giving rise to such determination no longer exist. If the Bank determines that for any reason adequate and reasonable means do not exist for determining the LIBOR Rate for any LIBOR Period, or that the LIBOR Rate does not adequately and fairly reflect the cost to the Bank of making or maintaining the Disbursements, (i) the Bank will promptly so notify the Borrower, and (ii) thereafter, the obligation of the Bank to make or maintain the Disbursements with interest accruing thereon on the basis of the LIBOR Rate shall be suspended until the Lender revokes such notice in writing.
Appears in 1 contract
Advances and Letters of Credit. (a) Subject to the provisions of this Agreementterms and conditions hereof, including without limitation the satisfaction of the conditions described in Article III, Lender agrees to establish a Revolving Loan Facility pursuant to which Lender may, in its sole discretion upon request of Borrowerand with no obligation to do so, make and incur from time to time, at Lender’s option, until the Revolving Credit Accommodations in support of Export OrdersTermination Date, provided the Credit Accommodation Amount at any time shall not exceed the lesser of (i) make available advances in Dollars (each, a “Revolving Credit Advance”) to or for the Maximum Amountbenefit of a Borrower as provided for in this Section 2.1, and (ii) incur Letter of Credit Obligations in Dollars (except as otherwise agreed by Lender or Issuing Bank) in respect of a Borrower as provided for in Annex B and this Section 2.1. The Lender will disburse Revolving Credit Advances to each Borrower by depositing the Export-Related Borrowing Baseamount of each such Revolving Credit Advance to the applicable Borrower’s Disbursement Account pursuant to Section 2.10 hereof. All The aggregate amount outstanding of Revolving Credit Advances and Letter of Credit Obligations shall not exceed at any one time the Revolving Credit Ceiling less the outstanding balance of all undrawn or unreimbursed Letters of Credit issued shall be in Dollars and all Disbursements shall be made in DollarsCredit.
(b) Lender may agree to make advances directly to Borrower or for Borrower's account during the Revolving Credit Period, it being expressly agreed that Lender has no commitment to do so. Borrower shall request each advance under the Loan by delivering to Lender a written request therefore, an Export-Related Borrowing Base Certificate, a copy Advances and Letters of the Export Order(s) against which Borrower is requesting an advance, and such other information and documentation as Lender may require, in accordance Credit issued with Section 6.10. Upon receipt of the above described information and documents by Lender, Lender shall make such advance within five (5) Business Days following Lender's determination that all conditions to the making of such advance have been satisfied. Each advance shall be conclusively deemed to have been made at the request of and for the benefit of Borrower (a) when credited respect to any deposit account Liquidation Sale of Borrower maintained Inventory or issued with Lender, or (b) when advanced in accordance respect to Capital Assets Advances shall not exceed the applicable Inventory Borrowing Base. Revolving Credit Advances and Letters of Credit issued with respect to any Liquidation Sales of Other Assets shall not exceed the instructions of an authorized Person. Lender, at its option, may set a cutoff time, after which all requests for advances under the Loan will be treated as having been requested on the next succeeding Business Dayapplicable Other Assets Borrowing Base.
(c) Lender Until the Revolving Credit Termination Date, Borrower may agree to issue Letters of Credit on behalf of Borrower or for Borrower's account from time to time during the Credit Periodrequest to borrow, it being expressly agreed that Lender has no commitment repay and request to do so. Standby Letters of Credit may be issued for Borrower's account for use as a performance bond, which Standby Letters of Credit can be drawn upon by Buyers only if Borrower fails to perform its obligations with respect to the relevant Export Order. Each Disbursement to fund a drawing reborrow under a Standby Letter of Credit shall conclusively be deemed to have been made when advanced in accordance with a draw request or instructions of an authorized Person. Each Letter of Credit will be in form and substance satisfactory to Lender and if approved for issuance by Lender in its sole discretion, will be issued by Lender as soon as practicable following (a) Lender's receipt of a completed Letter of Credit Application, an Export-Related Borrowing Base Certificate, a copy of the Export Order with respect to which Borrower is requesting a Letter of Credit, and such other information and documentation as Lender may require, in accordance with this Section 6.10; and (b) Lender's determination that all conditions to issuing such Letter of Credit have been satisfied, including but not limited to the Borrower's obligation to provide and maintain adequate collateral in the amount equivalent to twenty-five percent (25%) of the undrawn amount of each Letter of Credit issued hereunder. In no event shall (i) the expiry date of any Letter of Credit be later than twelve (12) months from the date of issuance of such Letter of Credit. Lender shall not be requested to issue during the last sixty (60) days of the Credit Period any Letter of Credit which will expire after the Stated Final Disbursement Date unless Lender agrees in writing to a renewal of the Loan, or Ex-Im Bank's prior written approval of the issuance of such Letter of Credit is obtained2.1.
(d) The terms All amounts borrowed pursuant to this Section, together with all other Obligations, shall be due and conditions payable (or in the case of each Letter any Letters of Credit, shall terminate) on the earlier of the maturity date therefor pursuant to Section 2.3 or the Revolving Credit Application delivered by Borrower and accepted by Lender hereunder, including without limitation terms related to reimbursement of amounts drawn and the payment of fees and interest, are incorporated herein by this referenceTermination Date; provided, however, that (a) Lender or any of its Affiliates may determine, in their sole and absolute discretion and with no provisions subjecting Lender and Borrower obligation so to arbitration do, to extend the termination or other dispute resolution provisions contained in maturity date for any Letter of Bank Product Obligations beyond the Revolving Credit Application shall be incorporated into this Agreement or applicable to Letters of Credit issued pursuant to this Agreement, and (b) Termination Date subject to the extent that there is any conflict between Borrower’s (or its Affiliate’s, as the terms and conditions case may be) satisfaction of any Letter of Credit Application and this Agreement, the terms of this Agreement shall prevail, except for (i) definitions contained in any Letter of Credit Application, (ii) if there is any provision contained in any Letter of Credit Application which subjects the Letter of Credit issued pursuant thereto to the UCP, the UCP shall prevail and (iii) if there is any provision contained in any Letter of Credit Application for a Standby Letter of Credit which subjects the Standby Letter of Credit issued pursuant thereto to the ISP, the ISP shall prevailconditions therefor required by Lender or its Affiliate.
(e) The outstanding principal balance A Borrower’s request for Revolving Credit Advances or Letters of Disbursements hereunder Credit shall be evidenced made by irrevocable written notice by an Authorized Person of Borrower to the representative of Lender identified on Schedule 2.1 at the address specified thereon. Those notices without limiting the applicable Borrower’s agreement to deliver a Liquidation Loan Proposal pursuant to Section 2.1(f), must be actually received by Lender no later than (1) 1:00 p.m. (Boston, Massachusetts time) three (3) Business Days prior to the proposed date of any Inventory Advance, Capital Assets Advance or Other Asset Advances; (2) 1:00 p.m. (Boston, Massachusetts time) on the Business Day on which a proposed Sales Tax or Expense Advance is requested; and (3) with respect to Letter of Credit Obligations, 1:00 p.m. (Boston, Massachusetts time) on the date which is at least two (2) Business Days prior to the proposed issuance date and subject to the terms and conditions governing Letters of Credit forth in Annex B attached hereto. Each such notice (a “Notice of Revolving Credit Advance” or “Notice of Letter of Credit Request,” as the case may be) must be given in writing (by telecopy or overnight courier). Any Notice of Revolving Credit Advance or Notice of Letter of Credit Request must be substantially in the form of Exhibit 2.1-1 or Exhibit 2.1-2, as applicable, and shall include the information required in such Exhibit and such other information as may be required by Lender. Any Notice of Letter of Credit Request must include the information described in Annex B and such other information as may be required by Lender. In addition, a Notice of Letter of Credit Request shall be accompanied by the Note and form of the Letter of Credit (which shall be repaid as set forth in Section 2.3 below.
(f) Interest on the outstanding principal balance of the Note shall accrue and be payable as set forth in Section 2.5 below.
(g) If the Lender determines that the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for the Lender to make the Disbursements and have interest accruing thereon on the basis of the LIBOR Rate, then, on notice thereof by the Lender acceptable to the Borrower, the Disbursements shall thereafter accrue interest at the CB Floating Rate until the Bank notifies the Borrower that the circumstances giving rise Lender) to such determination no longer existbe guaranteed. If the Bank determines that for any reason adequate and reasonable means do not exist for determining the LIBOR Rate for any LIBOR Period, or that the LIBOR Rate does not adequately and fairly reflect the cost Notwithstanding anything contained herein to the Bank contrary, Letter of making or maintaining the Disbursements, (i) the Bank will promptly so notify the Borrower, Credit applications by Borrower and (ii) thereafter, the obligation of the Bank approvals by Lender may be made and transmitted pursuant to make or maintain the Disbursements with interest accruing thereon on the basis of the LIBOR Rate shall be suspended until the Lender revokes such notice in writingelectronic codes and security measures mutually agreed upon and established by and between Borrower and Lender.
Appears in 1 contract
Advances and Letters of Credit. (a) Subject to the provisions of this Agreement, including without limitation the satisfaction of the conditions described in Article III, Lender agrees to establish a Revolving Loan Facility pursuant to which Lender may, in its sole discretion upon request of Borrower, and make and incur Credit Accommodations in support of Export OrdersOrders as hereinafter provided, provided the aggregate Credit Accommodation Amount outstanding at any time shall not exceed at such time the lesser of (ia) the Export-related Borrowing Base and (b) the Maximum Amount, and (ii) the Export-Related Borrowing Base. All Letters of Credit issued shall be in Dollars and all Disbursements hereunder shall be made in Dollars.
(b) Lender may agree agrees to make advances directly to a Borrower or for such Borrower's account during the Credit Commitment Period, it being expressly agreed that Lender has no commitment to do so. A Borrower shall request each advance under the Loan by delivering to Lender a written request thereforetherefor, an Export-Related related Borrowing Base Certificate, a copy of the Export Order(s) against which such Borrower is requesting an advanceadvance or, at Lender's discretion, the summaries thereof pursuant to Section 4.3, and such other information and documentation as Lender may require, in accordance with Section 6.106.10 of this Agreement. Upon receipt of the above described information and documents by Lender, Lender shall make such advance within five (5) one Business Days following Lender's determination that all conditions to the making of such advance have been satisfied. Lender shall be under no obligation to make advances based on Export-related Borrowing Base Certificate not issued within five Business Days of the date of each such Borrowers' request. Each advance shall be conclusively deemed to have been made at the request of and for the benefit of the requesting Borrower (a) when credited to any deposit account of such Borrower maintained with Lender, or (b) when advanced in accordance with the instructions of an authorized Person. Lender, at its option, may set a cutoff time, after which all requests for advances under the Loan will be treated as having been requested on the next succeeding Business Day.
(c) Lender may agree agrees to issue Letters of Credit on behalf of a Borrower or for such Borrower's account from time to time during the Credit Commitment Period, it being expressly agreed that Lender has no commitment to do so. Standby Letters of Credit may shall be issued for Borrowera borrower's account account, for use as a bid bonds, performance bondbonds or payment guarantees, which Standby Letters of Credit can be drawn upon by Buyers only if such Borrower fails to perform its obligations with respect to the relevant Export OrderOrder(s). Each Disbursement to fund a drawing under a Standby Letter of Credit shall conclusively be deemed to have been made when advanced in accordance with a draw request or instructions of an authorized Person. Each Letter of Credit will be in form and substance satisfactory to Lender and if approved for issuance by Lender in its sole discretion, will be issued by Lender as soon as practicable following (a) Lender's receipt of a completed Letter of Credit Application, an Export-Related related Borrowing Base Certificate, a copy of the Export Order Order(s) with respect to which a Borrower is requesting a Letter of Credit, and such other information and documentation as Lender may require, in accordance with Section 6.106.10 of this Agreement; and (b) Lender's determination that all conditions to issuing such Letter of Credit have been satisfied, including but not limited . Lender shall reserve from the applicable Export-related Borrowing Base an amount equal to the Borrower's obligation to provide and maintain adequate collateral in the amount equivalent to twenty-five percent (25%) at least 100% of the undrawn outstanding face amount of each Letter of Credit issued hereunder. In no event shall (i) the expiry date of any Letter of Credit be later than twelve (12i) 12 months from the date of issuance of such the Letter of CreditCredit or (ii) the Stated Final Disbursement Date. If the Loan is a Revolving Loan Facility (including a Transaction Specific Revolving Loan Facility), Lender shall not be requested obligated to issue during the last sixty (60) 60 days of the Credit Commitment Period (for this purpose the Commitment Period is deemed to end on the Stated Final Disbursement Date) any Letter of Credit which will expire after the Stated Final Disbursement Date unless Lender agrees in writing to a renewal Renewal of the Loan, or Ex-Im Bank's prior written approval of the issuance of such Letter of Credit is obtained.
(d) The terms and conditions of each Letter of Credit Application delivered by a Borrower and accepted by Lender hereunder, including without limitation terms related to reimbursement of amounts drawn and the payment of fees and interest, are incorporated herein by this reference; provided, however, that (a) no provisions subjecting Lender and such Borrower to arbitration or other dispute resolution provisions contained in any Letter of Credit Application shall be incorporated into this Agreement or applicable to Letters of Credit issued pursuant to this Agreement, and (b) to the extent that there is any conflict between the terms and conditions of any Letter of Credit Application and this Agreement, the terms of this Agreement shall prevail, except for (i) definitions contained in any Letter of Credit Application, and (ii) if there is any provision contained in any Letter of Credit Application which subjects the Letter of Credit issued pursuant thereto to the UCP, the UCP shall prevail and (iii) if there is any provision contained in any Letter of Credit Application for a Standby Letter of Credit which subjects the Standby Letter of Credit issued pursuant thereto to the ISP, the ISP shall prevail.
(ec) The outstanding principal balance of Disbursements hereunder shall be evidenced by the Note by, and shall be repaid as set forth in Section 2.3 below.
(f) Interest on the outstanding principal balance of the Note shall accrue bear interest and be payable as set forth in Section 2.5 below.
(g) If the Lender determines that the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for the Lender to make the Disbursements and have interest accruing thereon on the basis of the LIBOR Rate, then, on notice thereof by the Lender to the Borrowerprovided in, the Disbursements shall thereafter accrue interest at the CB Floating Rate until the Bank notifies the Borrower that the circumstances giving rise to such determination no longer exist. If the Bank determines that for any reason adequate and reasonable means do not exist for determining the LIBOR Rate for any LIBOR Period, or that the LIBOR Rate does not adequately and fairly reflect the cost to the Bank of making or maintaining the Disbursements, (i) the Bank will promptly so notify the Borrower, and (ii) thereafter, the obligation of the Bank to make or maintain the Disbursements with interest accruing thereon on the basis of the LIBOR Rate shall be suspended until the Lender revokes such notice in writing.Note:
Appears in 1 contract
Samples: Export Loan Agreement (Usdata Corp)
Advances and Letters of Credit. (a) Subject to the provisions of terms and conditions contained in this Agreement, including without limitation the satisfaction of the conditions described in Article III, Lender Bank agrees to establish make available to the Borrower a Revolving Loan Facility pursuant revolving credit facility, under which the Borrower may borrow Advances from the Bank and request the Bank to which Lender may, in its sole discretion upon request issue Letters of Borrower, make and incur Credit Accommodations in support of Export Orders, provided the Credit Accommodation Amount at any time shall not exceed and from time to time, on or before the lesser earlier of (i) the Maximum AmountTermination Date, and or (ii) such earlier date as of which the Export-Related Borrowing Base. Commitment has terminated pursuant to the terms of
(a) All Letters of Credit issued Advances, together with accrued interest thereon as provided in Section 2.2, shall be in Dollars evidenced by the Note. The outstanding principal balance of the Advances, and all Disbursements accrued interest thereon, shall be made due and payable in Dollarsfull on the Termination Date. At any time prior to the Termination Date, subject to the terms and conditions hereof, the Borrower may borrow, repay and reborrow Advances hereunder.
(b) Lender may agree to make advances directly to Each request for an Advance shall be made on notice given by the Borrower or for Borrower's account during not later than 11:00 A.M. (Dallas time) (i) on the Credit Period, it being expressly agreed that Lender has no commitment to do so. Borrower shall request each advance under the Loan by delivering to Lender a written request therefore, an Export-Related Borrowing Base Certificate, a copy of the Export Order(s) against which Borrower is requesting an advance, and such other information and documentation as Lender may require, in accordance with Section 6.10. Upon receipt of the above described information and documents by Lender, Lender shall make such advance within five (5) third Business Days following Lender's determination that all conditions Day prior to the making date of such advance have been satisfied. Each advance shall be conclusively deemed to have been made at the request of and for the benefit of Borrower (a) when credited to any deposit account of Borrower maintained with Lendera proposed LIBO Rate Advance, or (bii) when advanced in accordance with the instructions of an authorized Person. Lender, at its option, may set a cutoff time, after which all requests for advances under the Loan will be treated as having been requested on the next succeeding Business DayDay of a proposed Adjusted Prime Rate Advance. Each such notice from the Borrower of a request for Advance (a "Notice of Borrowing") shall be in writing and shall be in substantially the form of Exhibit "D" hereto, specifying (i) the requested date of such Advance, (ii) the aggregate Dollar amount of such Advance, and (iii) in the case of a LIBO Rate Advance, the initial Interest Period for such Advance. Each Notice of Borrowing shall be irrevocable and binding on the Borrower.
(c) Lender may agree to issue Letters of Credit on behalf of Borrower or Each request for Borrower's account from time to time during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Standby Letters of Credit may be issued for Borrower's account for use as a performance bond, which Standby Letters of Credit can be drawn upon by Buyers only if Borrower fails to perform its obligations with respect to the relevant Export Order. Each Disbursement to fund a drawing under a Standby Letter of Credit shall conclusively be deemed made on notice given by the Borrower not later than 11:00 A.M. (Dallas time) at least three Business Days prior to have been made when advanced in accordance with the date a draw request or instructions of an authorized Person. Each proposed Letter of Credit will is to be issued, in the form and substance satisfactory to Lender and if approved for of Exhibit "G" attached hereto, specifying (i) the requested date of issuance by Lender in its sole discretion, will be issued by Lender as soon as practicable following (a) Lender's receipt of a completed Letter of Credit Application, an Export-Related Borrowing Base Certificate, a copy of the Export Order with respect to which Borrower is requesting a such proposed Letter of Credit, and (ii) the face amount of such other information and documentation as Lender may requireproposed Letter of Credit, in accordance with Section 6.10; and (biii) Lender's determination that all conditions to issuing the form of such proposed Letter of Credit, which must be a standby Letter of Credit have been satisfied, including but not limited in form acceptable to the Borrower's obligation to provide Bank, and maintain adequate collateral in the amount equivalent to twenty-five percent (25%) of the undrawn amount of each Letter of Credit issued hereunder. In no event shall (iiv) the expiry date of any such proposed Letter of Credit Credit, which expiry date shall in no event be later (A) more than twelve (12) months one year from the date of issuance or, if renewed, one year from any date of such Letter of Creditrenewal, or (B) later than the Termination Date. Lender shall not be requested to issue during The amount paid by the last sixty (60) days of the Credit Period Bank in connection with any drawing under a Letter of Credit which will expire after shall be reimbursed by the Stated Final Disbursement Date unless Lender agrees in writing Borrower to a renewal of the LoanBank on the same day as such payment by the Bank, or Ex-Im Bank's prior written approval of the issuance of such Letter of Credit is obtained.
(d) The terms and conditions of each Letter of Credit Application delivered by Borrower and accepted by Lender hereunder, including without limitation terms related to reimbursement of amounts drawn and the payment of fees and interest, are incorporated herein by this reference; provided, however, that (a) no provisions subjecting Lender and Borrower to arbitration or other dispute resolution provisions contained in the event any Letter of Credit Application shall be incorporated into this Agreement or applicable to Letters of Credit issued pursuant to this Agreement, and (b) to the extent that there such amount is any conflict between the terms and conditions of any Letter of Credit Application and this Agreement, the terms of this Agreement shall prevail, except for (i) definitions contained in any Letter of Credit Application, (ii) if there is any provision contained in any Letter of Credit Application which subjects the Letter of Credit issued pursuant thereto to the UCP, the UCP shall prevail and (iii) if there is any provision contained in any Letter of Credit Application for a Standby Letter of Credit which subjects the Standby Letter of Credit issued pursuant thereto to the ISP, the ISP shall prevail.
(e) The outstanding principal balance of Disbursements hereunder shall be evidenced not reimbursed by the Note and shall be repaid as set forth in Section 2.3 below.
(f) Interest on the outstanding principal balance of the Note shall accrue and be payable as set forth in Section 2.5 below.
(g) If the Lender determines that the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for the Lender to make the Disbursements and have interest accruing thereon on the basis of the LIBOR Rate, then, on notice thereof by the Lender to the Borrower, the Disbursements shall thereafter accrue interest at the CB Floating Rate until the Bank notifies the Borrower that the circumstances giving rise to such determination no longer exist. If the Bank determines that for any reason adequate and reasonable means do not exist for determining the LIBOR Rate for any LIBOR Period, or that the LIBOR Rate does not adequately and fairly reflect the cost to the Bank of making or maintaining on the Disbursementssame day as such payment by the Bank, (i) the Bank will promptly so notify the Borrower, and (ii) thereafter, the obligation such amount shall be deemed to be a Adjusted Prime Rate Advance made as of the Bank to make or maintain date of such payment by the Disbursements with interest accruing thereon Bank, which is due and payable on the basis of the LIBOR Rate shall be suspended until the Lender revokes such notice in writingthird Business Day thereafter.
Appears in 1 contract
Samples: Credit Agreement (Treadco Inc)
Advances and Letters of Credit. (a) Subject to the provisions of this Agreementterms and conditions hereof, including without limitation the satisfaction of the conditions described in Article III, Lender agrees to establish a Revolving Loan Facility pursuant to which Lender may, in its sole discretion upon request of Borrowerand with no obligation to do so, make and incur from time to time, at Lender’s option, until the Revolving Credit Accommodations in support of Export OrdersTermination Date, provided the Credit Accommodation Amount at any time shall not exceed the lesser of (i) make available advances (each, a “Revolving Credit Advance”) to or for the Maximum Amountbenefit of Borrower as provided for in this Section 2.1, and (ii) incur Letter of Credit Obligations in respect of Borrower as provided for in Annex B and this Section 2.1 in an aggregate amount outstanding not to exceed at any one time the Export-Related Borrowing Base. All Revolving Credit Ceiling less the outstanding balance of all undrawn or unreimbursed Letters of Credit issued shall be in Dollars and all Disbursements shall be made in DollarsCredit.
(b) For purposes of this Agreement, Liquidation Loans with respect to any Liquidation Sale shall be limited pursuant the following, as of any date of determination:
(i) The aggregate outstanding amount of all Revolving Credit Advances and Letter of Credit Obligations incurred by Lender may agree with respect to make advances directly such Liquidation Sale shall not exceed the applicable Inventory Borrowing Base, in respect to Borrower Liquidation Sales of Inventory, or for Borrower's account during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Borrower shall request each advance under the Loan by delivering to Lender a written request therefore, an Export-Related Other Assets Borrowing Base Certificate, a copy in respect to Liquidation Sales of the Export Order(s) against which Borrower is requesting an advance, and such other information and documentation as Lender may require, in accordance with Section 6.10. Upon receipt of the above described information and documents by Lender, Lender shall make such advance within five (5) Business Days following Lender's determination that all conditions to the making of such advance have been satisfied. Each advance shall be conclusively deemed to have been made at the request of and for the benefit of Borrower (a) when credited to any deposit account of Borrower maintained with Lender, or (b) when advanced in accordance with the instructions of an authorized Person. Lender, at its option, may set a cutoff time, after which all requests for advances under the Loan will be treated as having been requested on the next succeeding Business DayOther Assets.
(c) Lender Until the Revolving Credit Termination Date, Borrower may agree to issue Letters of Credit on behalf of Borrower or for Borrower's account from time to time during request to borrow, repay and request to reborrow under this Section 2.1.
(d) All amounts borrowed pursuant to this Section, together with all other Obligations, shall be due and payable (or in the case of any Letters of Credit, shall terminate) on the earlier of the maturity date therefor pursuant to Section 2.3 or the Revolving Credit PeriodTermination Date; provided, it being expressly agreed however, that Lender has or any of its Affiliates may determine, in their sole and absolute discretion and with no commitment obligation so to do so. Standby do, to extend the termination or maturity date for any Bank Product Obligations beyond the Revolving Credit Termination Date subject to the Borrower’s (or its Affiliate’s, as the case may be) satisfaction of any conditions therefor required by Lender or its Affiliate.
(e) Borrower’s requests for Revolving Credit Advances or Letters of Credit shall be made by irrevocable written notice by an Authorized Person of Borrower to the representative of Lender identified on Schedule 2.1 at the address specified thereon. Those notices, except as otherwise required for proposed Inventory Advances or Other Assets Advances under Section 2.1(f), must be actually received by Lender no later than (1) 1:00 p.m. (Boston, Massachusetts time) three (3) Business Days prior to the proposed Revolving Credit Advance in the case of Inventory or Other Asset Advances or on the Business Day on which the proposed Revolving Credit Advance is requested in the case of Sales Tax or Expense Advances, or (2) with respect to Letter of Credit Obligations, 1:00 p.m. (Boston, Massachusetts time) on the date which is at least two (2) Business Days prior to the proposed issuance date and as more particularly described in Annex B. Each such notice (a “Notice of Revolving Credit Advance” or “Notice of Letter of Credit Request,” as the case may be) must be given in writing (by telecopy or overnight courier). Any Notice of Revolving Credit Advance or Notice of Letter of Credit Request must be substantially in the form of Exhibit 2.1-1 or Exhibit 2.1-2, as applicable, and shall include the information required in such Exhibit and such other information as may be issued required by Lender. Any Notice of Letter of Credit Request must include the information described in Annex B and such other information as may be required by Lender. In addition, a Notice of Letter of Credit Request shall be accompanied by the form of the Letter of Credit (which shall be acceptable to the Lender) to be guaranteed. Notwithstanding anything contained herein to the contrary, Letter of Credit applications by Borrower and approvals by Lender may be made and transmitted pursuant to electronic codes and security measures mutually agreed upon and established by and between Borrower and Lender.
(f) Inventory Advances, Other Assets Advances, and Letters of Credit.
(i) Subject to Section 6.15, if Borrower proposes to enter into Liquidation Sales Agreements with respect to any proposed Liquidation Sale, Borrower may propose (or shall propose if required to do so under Section 6.15) that Lender agree to make a Revolving Credit Advance to Borrower or incur Letter of Credit Obligations for Borrower's ’s account for use as a performance bond, which Standby Letters of Credit can be drawn upon by Buyers only if Borrower fails to perform its obligations with respect to the relevant Export OrderRetail Inventory (Revolving Credit Advances made with respect to Retail Inventory (in whole or in part) are referred to as an “Inventory Advances”) or Other Assets (Revolving Credit Advances made solely with respect to Other Assets are referred to herein as “Other Assets Advances”) that are proposed to be sold through such Liquidation Sale. Each Disbursement such proposal (a “Liquidation Loan Proposal”) shall (A) be signed by an Authorized Person, (B) be substantially in the form of Exhibit 2.1(a)(i) attached hereto and accompanied by all of the documents and information described on Schedule 2.1(a)(i), together with copies of any court orders for any Merchant party to fund an Insolvency Proceeding, (C) involve a drawing under a Standby proposed Inventory Advance, Other Asset Advance, or Letter of Credit shall conclusively be deemed in a minimum amount reasonably determined by Borrower and agreed to have been made when advanced in accordance with a draw request or instructions of an authorized Person. Each Letter of Credit will be in form and substance satisfactory to Lender and if approved for issuance by Lender in its sole discretion, will and (D) be issued sent so that it is actually received by Lender as soon as practicable following no later than 1:00 p.m. (aBoston, Massachusetts time) on the fifth (5th) Business Day prior to the date of the proposed Inventory Advance, Other Assets Advance, or incurrence of the Letter of Credit Obligations.
(ii) Within three (3) Business Days after Lender's ’s receipt of a completed Liquidation Loan Proposal, Lender will notify Borrower in writing (such notice, a “Lender’s Offer”), which notice may be substantially in the form of Exhibit 2.1(a)(ii) or such other form as Lender may elect, whether Lender:
(A) would be willing to make Revolving Credit Advance or incur Letter of Credit Application, an Export-Related Borrowing Base Certificate, Obligations on the terms proposed by Borrower in which case Borrower shall be obligated to timely submit a copy Notice of the Export Order with respect to which Borrower is requesting Revolving Credit Advance or a Letter Notice of Credit, and such other information and documentation as Lender may require, in accordance with Section 6.10; and (b) Lender's determination that all conditions to issuing such Letter of Credit have been satisfied, including but Request pursuant to Section 2.1(e).
(B) is not limited willing to the Borrower's obligation to provide and maintain adequate collateral in the amount equivalent to twenty-five percent (25%) of the undrawn amount of each Letter of make any Revolving Credit issued hereunder. In no event shall (i) the expiry date of Advance or incur any Letter of Credit Obligations with respect to such Liquidation Sale, or
(C) would be later than twelve (12) months from the date of issuance of such willing to make a Revolving Credit Advance or incur Letter of CreditCredit Obligations with respect to the proposed Liquidation Sale, but only at a specified Inventory or Other Assets Advance Rate that is different from that proposed by Borrower and/or with such other modifications specified in such notice. Lender shall have sole discretion to decide whether or not to agree to any Liquidation Loan Proposal or to propose an alternative Inventory or Other Assets Advance Rate for the proposed Liquidation Sale. Lender shall not be requested have any obligation to issue during the last sixty (60) days of the make a Revolving Credit Period any Advance or incur Letter of Credit which will expire after the Stated Final Disbursement Date Obligations unless Lender agrees actually receives, within two (2) Business Days after Borrower’s receipt of a notice from Lender described in writing to a renewal clauses (A) or (C) of the Loanimmediately preceding sentence, written notice from Borrower of Borrower’s intention to request disbursement of such Revolving Credit Advance or Ex-Im Bank's prior written approval of the issuance incurrence of such Letter of Credit is obtained.
(d) The Obligations on the terms and conditions of each Letter of Credit Application delivered by Borrower and accepted by Lender hereunder, including without limitation terms related to reimbursement of amounts drawn and the payment of fees and interest, are incorporated herein by this referenceset forth in such notice from Lender; provided, however, that (a) no provisions subjecting if the Lender and Borrower has agreed to arbitration make a Revolving Credit Advance or other dispute resolution provisions contained in any incur Letter of Credit Application Obligations on the terms proposed by Borrower in the applicable Liquidation Loan Proposal, Borrower shall apply for such Revolving Credit Advance or Letter of Credit on such terms (unless subsequently otherwise agreed by Lender in writing). In the event that, as a result of competitive bidding or otherwise, Borrower elects to increase the Guaranteed Amount or Purchase Price it is willing to pay under a Liquidation Sales Agreement for which it has provided to Lender a Liquidation Loan Proposal under Section 2.1(f)(i) prior to or after Lender’s sending a notice under Section 2.1(f)(ii), Borrower shall promptly provide Lender with written notice of such increase, together with a modified Liquidation Loan Proposal, and Lender shall have the option, in its absolute discretion, to determine whether to fund any portion of such increase to reduce the Inventory Advance Rate or Other Assets Advance Rate in respect to such higher Guaranteed Amount or Purchase Price or to make a Liquidation Loan only in accordance with the original terms proposed by Lender prior to such increase.
(iii) The amount of the Revolving Credit Advance and/or the Letter of Credit Obligations with respect to each Liquidation Sale shall: (x) be incorporated into this calculated based upon the applicable Inventory Advance Rate or Other Assets Advance Rate and the actual Guaranteed Amount or Purchase Price as determined pursuant to the applicable Agency Agreement or applicable Purchase Agreement (or, if the actual amount required to Letters of Credit issued pursuant be delivered to this Agreementthe Merchant by Borrower with respect to the Guaranteed Amount or Purchase Price is less than such Guaranteed Amount or Purchase Price, such lesser amount) and (by) in the aggregate, not exceed at any time the applicable Inventory Borrowing Base or Other Assets Borrowing Base, as the case may be. Subject to the extent that there is any conflict between the terms and conditions of any Letter of Credit Application and this Agreement, the terms of this Agreement shall prevail, except for (i) definitions contained in any Revolving Credit Advance and the applicable Letter of Credit ApplicationObligations may be incurred simultaneously with such advance, (ii) shall be disbursed as a single advance; provided, however, that in the event the Liquidation Sales Agreements require an initial payment by Borrower to the Merchant before the completion of a final inventory count, the Revolving Credit Advance may be disbursed in two or separate advances with the first portion of the Revolving Credit Advance being calculated based upon the applicable Inventory Advance Rate or Other Assets Advance Rate and the amount of such required initial payment and the second portion, if there is any provision contained any, of the Revolving Credit Advance being determined and made based on the actual Guaranteed Amount or Purchase Price as determined by the final inventory count and, if necessary, the amount of such subsequent Revolving Credit Advance being increased in any correspondence with reductions to the related Letter of Credit Application which subjects the Letter of Credit issued pursuant thereto to the UCP, the UCP shall prevail and (iii) if there is any provision contained in any Letter of Credit Application for a Standby Letter of Credit which subjects the Standby Letter of Credit issued pursuant thereto to the ISP, the ISP shall prevailObligations.
(e) The outstanding principal balance of Disbursements hereunder shall be evidenced by the Note and shall be repaid as set forth in Section 2.3 below.
(f) Interest on the outstanding principal balance of the Note shall accrue and be payable as set forth in Section 2.5 below.
(g) If the Lender determines that the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for the Lender to make the Disbursements and have interest accruing thereon on the basis of the LIBOR Rate, then, on notice thereof by the Lender to the Borrower, the Disbursements shall thereafter accrue interest at the CB Floating Rate until the Bank notifies the Borrower that the circumstances giving rise to such determination no longer exist. If the Bank determines that for any reason adequate and reasonable means do not exist for determining the LIBOR Rate for any LIBOR Period, or that the LIBOR Rate does not adequately and fairly reflect the cost to the Bank of making or maintaining the Disbursements, (i) the Bank will promptly so notify the Borrower, and (ii) thereafter, the obligation of the Bank to make or maintain the Disbursements with interest accruing thereon on the basis of the LIBOR Rate shall be suspended until the Lender revokes such notice in writing.
Appears in 1 contract
Advances and Letters of Credit. (a) Subject to the provisions of this Agreementterms and conditions hereof, including without limitation the satisfaction of the conditions described in Article III, Lender agrees to establish a Revolving Loan Facility pursuant to which Lender may, in its sole discretion upon request of Borrowerand with no obligation to do so, make and incur from time to time, at Lender’s option, until the Revolving Credit Accommodations in support of Export OrdersTermination Date, provided the Credit Accommodation Amount at any time shall not exceed the lesser of (i) make available advances in Dollars (each, a “Revolving Credit Advance”) to or for the Maximum Amountbenefit of a Borrower as provided for in this Section 2.1, and (ii) the Export-Related Borrowing Base. All Letters incur Letter of Credit issued shall be Obligations in Dollars (except as otherwise agreed by Lender or Issuing Bank) in respect of a Borrower as provided for in Annex B and all Disbursements this Section 2.1. Lender will disburse Revolving Credit Advances to each Borrower by depositing the amount of each such Revolving Credit Advance to the applicable Borrower’s Disbursement Account pursuant to Section 2.10 hereof. The aggregate amount outstanding of Revolving Credit Advances and Letter of Credit Obligations shall be made in Dollarsnot exceed at any one time the Revolving Loan Ceiling.
(b) Lender may agree to make advances directly to Borrower or for Borrower's account during the Revolving Credit Period, it being expressly agreed that Lender has no commitment to do so. Borrower shall request each advance under the Loan by delivering to Lender a written request therefore, an Export-Related Borrowing Base Certificate, a copy Advances and Letters of the Export Order(sCredit (other than Backend L/Cs) against which Borrower is requesting an advance, and such other information and documentation as Lender may require, in accordance issued with Section 6.10. Upon receipt of the above described information and documents by Lender, Lender shall make such advance within five (5) Business Days following Lender's determination that all conditions to the making of such advance have been satisfied. Each advance shall be conclusively deemed to have been made at the request of and for the benefit of Borrower (a) when credited respect to any deposit account Liquidation Sale of Borrower maintained Inventory shall not exceed the applicable Inventory Borrowing Base. Revolving Credit Advances and Letters of Credit (other than Backend L/Cs) issued with Lender, or (b) when advanced in accordance with respect to any Liquidation Sales of Other Assets shall not exceed the instructions of an authorized Person. Lender, at its option, may set a cutoff time, after which all requests for advances under the Loan will be treated as having been requested on the next succeeding Business Dayapplicable Other Assets Borrowing Base.
(c) Lender Until the Revolving Credit Termination Date, a Borrower may agree to issue Letters of Credit on behalf of Borrower or for Borrower's account from time to time during the Credit Periodrequest to borrow, it being expressly agreed that Lender has no commitment repay and request to do so. Standby Letters of Credit may be issued for Borrower's account for use as a performance bond, which Standby Letters of Credit can be drawn upon by Buyers only if Borrower fails to perform its obligations with respect to the relevant Export Order. Each Disbursement to fund a drawing reborrow under a Standby Letter of Credit shall conclusively be deemed to have been made when advanced in accordance with a draw request or instructions of an authorized Person. Each Letter of Credit will be in form and substance satisfactory to Lender and if approved for issuance by Lender in its sole discretion, will be issued by Lender as soon as practicable following (a) Lender's receipt of a completed Letter of Credit Application, an Export-Related Borrowing Base Certificate, a copy of the Export Order with respect to which Borrower is requesting a Letter of Credit, and such other information and documentation as Lender may require, in accordance with this Section 6.10; and (b) Lender's determination that all conditions to issuing such Letter of Credit have been satisfied, including but not limited to the Borrower's obligation to provide and maintain adequate collateral in the amount equivalent to twenty-five percent (25%) of the undrawn amount of each Letter of Credit issued hereunder. In no event shall (i) the expiry date of any Letter of Credit be later than twelve (12) months from the date of issuance of such Letter of Credit. Lender shall not be requested to issue during the last sixty (60) days of the Credit Period any Letter of Credit which will expire after the Stated Final Disbursement Date unless Lender agrees in writing to a renewal of the Loan, or Ex-Im Bank's prior written approval of the issuance of such Letter of Credit is obtained2.1.
(d) The terms All amounts borrowed pursuant to this Section, together with all other Obligations, shall be due and conditions payable (or in the case of each Letter any Letters of Credit, shall terminate) on the earlier of the maturity date therefor pursuant to Section 2.3 or the Revolving Credit Application delivered by Borrower and accepted by Lender hereunder, including without limitation terms related to reimbursement of amounts drawn and the payment of fees and interest, are incorporated herein by this referenceTermination Date; provided, however, that Lender or any of its Affiliates may determine, in their sole and absolute discretion and with no obligation so to do, to extend the termination or maturity date for any Bank Product Obligations beyond the Revolving Credit Termination Date subject to Borrowers’ (aor their Affiliate’s, as the case may be) no provisions subjecting Lender and Borrower to arbitration or other dispute resolution provisions contained in any Letter of Credit Application shall be incorporated into this Agreement or applicable to Letters of Credit issued pursuant to this Agreement, and (b) to the extent that there is any conflict between the terms and conditions satisfaction of any Letter of Credit Application and this Agreement, the terms of this Agreement shall prevail, except for (i) definitions contained in any Letter of Credit Application, (ii) if there is any provision contained in any Letter of Credit Application which subjects the Letter of Credit issued pursuant thereto to the UCP, the UCP shall prevail and (iii) if there is any provision contained in any Letter of Credit Application for a Standby Letter of Credit which subjects the Standby Letter of Credit issued pursuant thereto to the ISP, the ISP shall prevailconditions therefor required by Lender or its Affiliate.
(e) The outstanding principal balance A Borrower’s request for Revolving Credit Advances or Letters of Disbursements hereunder Credit shall be evidenced made by irrevocable written notice by an Authorized Person of such Borrower to the representative of Lender identified on Schedule 2.1 at the address specified thereon. Those notices without limiting the applicable Borrower’s agreement to deliver a Liquidation Loan Proposal pursuant to Section 2.1(f), must be actually received by Lender no later than (1) 1:00 p.m. (Boston, Massachusetts time) three (3) Business Days prior to the proposed date of any Inventory Advance or Other Asset Advances; (2) 1:00 p.m. (Boston, Massachusetts time) on the Business Day on which a proposed Sales Tax or Total Expense Advance is requested; and (3) with respect to Letter of Credit Obligations, 1:00 p.m. (Boston, Massachusetts time) on the date which is at least two (2) Business Days prior to the proposed issuance date and subject to the terms and conditions governing Letters of Credit forth in Annex B attached hereto. Each such notice (a “Notice of Revolving Credit Advance” or “Notice of Letter of Credit Request,” as the case may be) must be given in writing (by telecopy or overnight courier). Any Notice of Revolving Credit Advance or Notice of Letter of Credit Request must be substantially in the form of Exhibit 2.1-1 or Exhibit 2.1-2, as applicable, and shall include the information required in such Exhibit and such other information as may be required by Lender. Any Notice of Letter of Credit Request must include the information described in Annex B and such other information as may be required by Lender. In addition, a Notice of Letter of Credit Request shall be accompanied by the Note and form of the Letter of Credit (which shall be repaid as set forth in Section 2.3 below.
(facceptable to Lender) Interest on the outstanding principal balance of the Note shall accrue and to be payable as set forth in Section 2.5 below.
(g) If the Lender determines that the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for the Lender to make the Disbursements and have interest accruing thereon on the basis of the LIBOR Rate, then, on notice thereof by the Lender guaranteed. Notwithstanding anything contained herein to the Borrowercontrary, the Disbursements shall thereafter accrue interest at the CB Floating Rate until the Bank notifies the Letter of Credit applications by a Borrower that the circumstances giving rise and approvals by Lender may be made and transmitted pursuant to such determination no longer exist. If the Bank determines that for any reason adequate electronic codes and reasonable means do not exist for determining the LIBOR Rate for any LIBOR Period, or that the LIBOR Rate does not adequately security measures mutually agreed upon and fairly reflect the cost to the Bank of making or maintaining the Disbursements, (i) the Bank will promptly so notify the Borrower, established by and (ii) thereafter, the obligation of the Bank to make or maintain the Disbursements with interest accruing thereon on the basis of the LIBOR Rate shall be suspended until the Lender revokes such notice in writingbetween Borrowers and Lender.
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Advances and Letters of Credit. (a) Subject to the provisions of terms and conditions contained in this Agreement, including without limitation the satisfaction of the conditions described in Article III, Lender Bank agrees to establish a Revolving Loan Facility pursuant to which Lender may, in its sole discretion upon request of Borrower, make and incur Credit Accommodations in support of Export Orders, provided the Credit Accommodation Amount at any time shall not exceed the lesser of (i) the Maximum Amount, and (ii) the Export-Related Borrowing Base. All Letters of Credit issued shall be in Dollars and all Disbursements shall be made in Dollars.
(b) Lender may agree to make advances directly to Borrower or for Borrower's account during the Credit Period, it being expressly agreed that Lender has no commitment to do so. Borrower shall request each advance under the Loan by delivering to Lender a written request therefore, an Export-Related Borrowing Base Certificate, a copy of the Export Order(s) against which Borrower is requesting an advance, and such other information and documentation as Lender may require, in accordance with Section 6.10. Upon receipt of the above described information and documents by Lender, Lender shall make such advance within five (5) Business Days following Lender's determination that all conditions available to the making of such advance have been satisfied. Each advance shall be conclusively deemed to have been made at Borrower a revolving credit facility, under which the Borrower may borrow Advances from the Bank and request of and for the benefit of Borrower (a) when credited to any deposit account of Borrower maintained with Lender, or (b) when advanced in accordance with the instructions of an authorized Person. Lender, at its option, may set a cutoff time, after which all requests for advances under the Loan will be treated as having been requested on the next succeeding Business Day.
(c) Lender may agree Bank to issue Letters of Credit on behalf of Borrower or for Borrower's account at any time and from time to time during time, on or before the Credit Period, it being expressly agreed that Lender earlier of the Termination Date or the date as of which the Commitment has no commitment to do so. Standby Letters of Credit may be issued for Borrower's account for use as a performance bond, which Standby Letters of Credit can be drawn upon by Buyers only if Borrower fails to perform its obligations with respect terminated pursuant to the relevant Export Order. Each Disbursement to fund a drawing under a Standby Letter terms of Credit shall conclusively be deemed to have been made when advanced in accordance with a draw request Section 2.12, 8.2 or instructions of an authorized Person. Each Letter of Credit will be in form and substance satisfactory to Lender and if approved for issuance by Lender in its sole discretion, will be issued by Lender as soon as practicable following (a) Lender's receipt of a completed Letter of Credit Application, an Export-Related Borrowing Base Certificate, a copy of the Export Order with respect to which Borrower is requesting a Letter of Credit, and such other information and documentation as Lender may require8.3 hereof, in accordance with Section 6.10; and (b) Lender's determination that all conditions to issuing such Letter of Credit have been satisfied, including but not limited to amounts as the Borrower's obligation to provide and maintain adequate collateral in the amount equivalent to twenty-five percent (25%) of the undrawn amount of each Letter of Credit issued hereunder. In no event shall (i) the expiry date of any Letter of Credit be later than twelve (12) months from the date of issuance of such Letter of Credit. Lender shall not be requested to issue during the last sixty (60) days of the Credit Period any Letter of Credit which will expire after the Stated Final Disbursement Date unless Lender agrees in writing to a renewal of the Loan, or Ex-Im Bank's prior written approval of the issuance of such Letter of Credit is obtained.
(d) The terms and conditions of each Letter of Credit Application delivered by Borrower and accepted by Lender hereunder, including without limitation terms related to reimbursement of amounts drawn and the payment of fees and interest, are incorporated herein by this referencemay request; provided, however, that (ai) no provisions subjecting Lender and Borrower to arbitration or other dispute resolution provisions contained in any Letter the aggregate outstanding principal balance of Credit Application shall be incorporated into this Agreement or applicable to all outstanding Advances plus the aggregate unpaid Reimbursement Obligations plus the aggregate undrawn face amount of all outstanding Letters of Credit issued pursuant shall not exceed at any time an amount equal to this Agreementthe lesser of the Available Commitment or the Borrowing Base, and (bii) each request for a Prime Rate Advance hereunder shall be in the minimum amount of $500,000 and an integral multiple of $100,000, and (iv) each request for a Eurodollar Advance hereunder shall be in the minimum amount of $1,000,000 and an integral multiple of $100,000. At any time prior to the extent that there is any conflict between Termination Date, subject to the terms and conditions of any Letter of Credit Application and this Agreementhereof, the terms of this Agreement Borrower may borrow, repay and reborrow Advances hereunder.
(b) Each request for an Advance shall prevail, except for be made on notice given by the Borrower not later than 11:00 A.M. (Dallas time) (i) definitions contained on the third Business Day prior to the date of a proposed Eurodollar Advance, or (ii) on the Business Day of a proposed Prime Rate Advance. Each such notice from the Borrower of a request for Advance (a "Notice of Borrowing") shall be in any Letter writing and shall be in substantially the form of Credit ApplicationExhibit "C" hereto, specifying (i) the requested date of such Advance, (ii) if there whether the Advance is any provision contained to be a Prime Rate Advance or a Eurodollar Advance, (iii) the aggregate Dollar amount of such Advance, and (iv) in any the case of a Eurodollar Advance, the initial Interest Period for such Advance. Each Notice of Borrowing shall be irrevocable and binding on the Borrower.
(c) Each request for a Letter of Credit Application which subjects shall be made on notice given by the Borrower not later than 11:00 A.M. (Dallas time) at least three Business Days prior to the date a proposed Letter of Credit issued pursuant thereto is to be issued, in the UCPform of Exhibit "D" attached hereto, specifying (i) the UCP shall prevail and requested date of issuance of such proposed Letter of Credit, (ii) the face amount of such proposed Letter of Credit, (iii) if there is any provision contained in any the form of such proposed Letter of Credit, which must be a standby Letter of Credit Application for in form acceptable to the Bank, and (iv) the expiry date of such proposed Letter of Credit, which expiry date shall in no event be (A) more than one year from the date of issuance or, if renewed, one year from any date of such renewal, or (B) later than the Termination Date (unless the Bank consents to such a Standby later date and the Borrower agrees to provide cash collateral at the Termination Date to fully secure the undrawn portion of any such Letter of Credit which subjects on and after the Standby Letter of Credit issued pursuant thereto Termination Date as set forth in Section 3.3 hereof or on terms otherwise satisfactory to the ISPBank).
(d) All Advances, together with accrued interest thereon as provided in Section 2.2, shall be evidenced by the ISP Note, and shall prevailbe due and payable in full on the Termination Date.
(e) The outstanding principal balance amount paid by the Bank in connection with any drawing under a Letter of Disbursements hereunder Credit shall be evidenced reimbursed by the Note and shall be repaid as set forth in Section 2.3 below.
(f) Interest on the outstanding principal balance of the Note shall accrue and be payable as set forth in Section 2.5 below.
(g) If the Lender determines that the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for the Lender to make the Disbursements and have interest accruing thereon on the basis of the LIBOR Rate, then, on notice thereof by the Lender to the Borrower, the Disbursements shall thereafter accrue interest at the CB Floating Rate until the Bank notifies the Borrower that the circumstances giving rise to such determination no longer exist. If the Bank determines that for any reason adequate and reasonable means do not exist for determining the LIBOR Rate for any LIBOR Period, or that the LIBOR Rate does not adequately and fairly reflect the cost to the Bank on the same day as such payment by the Bank, provided, however, that in the event the conditions precedent for a Prime Rate Advance are satisfied on the date of making or maintaining the Disbursements, (i) such payment by the Bank will promptly so notify (other than the Borrowerdelivery of a Notice of Borrowing) and the Borrower has not otherwise notified the Bank that it intends to repay such Reimbursment Obligations with its own funds on such day, and (ii) thereafter, such Reimbursment Obligation shall be automatically deemed to be a Prime Rate Advance by the obligation Bank for the account of the Bank to make or maintain the Disbursements with interest accruing thereon on the basis Borrower made as of the LIBOR Rate shall be suspended until date of such payment by the Lender revokes such notice in writingBank.
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Samples: Credit Agreement (Contran Corp)
