Bid Rate Advances. (a) Subject to the terms and conditions set forth herein, each Bank agrees that the Borrower may from time to time request the Banks to submit offers to make Bid Rate Loans, in Dollars or in one or more Alternative Currencies, to the Borrower prior to the Maturity Date pursuant to this §2.9; provided, however, that after giving effect to any Bid Rate Advance, (i) the Outstanding Amount of all Revolving Credit Loans, Bid Rate Loans and Letter of Credit Obligations shall not at any time exceed the Total Revolving Credit Commitment and (ii) the aggregate amount of all Bid Rate Advances then outstanding (including the requested Bid Rate Advance) shall not exceed the Bid Rate Maximum Amount. There shall not be more than ten (10) different Interest Periods in effect with respect to Bid Rate Loans at any time. (b) The Borrower may request the submission of Competitive Bids by delivering a notice, in the form attached hereto as Exhibit D-2 (a “Bid Rate Advance Borrowing Notice”) to the Agent not later than 12:00 noon (A) one (1) Business Day prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (B) four (4) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, and (C) five (5) Business Days (or six (6) Business Days in the case of a Special Notice Currency) prior to the date of any proposed Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars. Each Bid Rate Advance Borrowing Notice shall specify (I) the requested date of the Bid Rate Advance (which shall be a Business Day), (II) the aggregate principal amount of Bid Rate Loans requested (which must be $5,000,000 or a whole multiple of $1,000,000 in excess thereof), (III) the Type of Bid Rate Loans requested, (IV) the duration of the Interest Period with respect thereto, and (V) whether such Bid Rate Advance is to be advanced in an Alternative Currency and, if so, which Alternative Currency, and shall be signed by an Authorized Officer of the Borrower. No Bid Rate Advance Borrowing Notice shall contain a request for (A) more than one Type of Bid Rate Loan or (B) Bid Rate Loans having more than three different Interest Periods. (c) The procedures for the submission of Competitive Bids by the Banks are as follows: (i) The Agent shall promptly notify each Bank of each Bid Rate Advance Borrowing Notice received by it from the Borrower and the contents of such Bid Rate Advance Borrowing Notice. (ii) Each Bank may (but shall have no obligation to) submit a Competitive Bid containing an offer to make one or more Bid Rate Loans in response to such Bid Rate Advance Borrowing Notice. Such Competitive Bid must be delivered to the Agent not later than 10:30 a.m. (A) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (B) three (3) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, and (C) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars; provided, however, that any Competitive Bid submitted by BOA in its capacity as a Bank in response to any Bid Rate Advance Borrowing Notice must be submitted to the Agent not later than 10:15 a.m. on the date on which Competitive Bids are required to be delivered by the other Banks in response to such Bid Rate Advance Borrowing Notice. Each Competitive Bid shall specify (A) the proposed date of the Bid Rate Advance; (B) the principal amount of each Bid Rate Loan for which such Competitive Bid is being made, which principal amount (x) may be equal to, greater than or less than the Commitment of the bidding Bank, (y) must be $1,000,000 or a whole multiple of $1,000,000 in excess thereof, and (z) may not exceed the principal amount of Bid Rate Loans for which Competitive Bids were requested; (C) if the proposed Bid Rate Advance is to consist of Absolute Rate Bid Rate Loans, the Absolute Rate offered for each such Bid Rate Loan and the Interest Period applicable thereto; (D) if the proposed Bid Rate Advance is to consist of Index Rate Loans, the Index Rate Bid Margin with respect to each such Index Rate Loan and the Interest Period applicable thereto; (E) the identity of the bidding Bank; and (F) if the proposed Bid Rate Advance is to be advanced in an Alternative Currency, specifying which Alternative Currency. (iii) Any Competitive Bid shall be disregarded if it (A) is received after the applicable time specified in clause (ii) above, (B) is not substantially in the form of a Competitive Bid as specified herein, (C) contains qualifying, conditional or similar language, (D) proposes terms other than or in addition to those set forth in the applicable Bid Rate Advance Borrowing Notice, or (E) is otherwise not responsive to such Bid Rate Advance Borrowing Notice. Any Bank may correct a Competitive Bid containing a manifest error by submitting a corrected Competitive Bid (identified as such) not later than the applicable time required for submission of Competitive Bids. Any such submission of a corrected Competitive Bid shall constitute a revocation of the Competitive Bid that contained the manifest error. The Agent may, but shall not be required to, notify any Bank of any manifest error it detects in such Bank’s Competitive Bid. The Agent shall promptly notify the Borrower of any disregarded Competitive Bid. (iv) Subject only to the provisions of §§5.4, 5.5 and 13 and clause (iii) above, each Competitive Bid shall be irrevocable. (d) Not later than 11:00 a.m. (i) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (ii) three Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, or (iii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars, the Agent shall notify the Borrower of the identity of each Bank that has submitted a Competitive Bid that complies with §2.9(c) and of the terms of the offers contained in each such Competitive Bid. (e) Not later than 11:30 a.m. (i) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (ii) three (3) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, or (iii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars, the Borrower shall notify the Agent of its acceptance or rejection of the offers of which it was notified pursuant to §2.9(d). The Borrower shall be under no obligation to accept any Competitive Bid and may choose to reject all Competitive Bids. In the case of acceptance, such notice shall specify the aggregate principal amount of Competitive Bids for each Interest Period that is accepted. The Borrower may accept any Competitive Bid in whole or in part; provided that: (i) the aggregate principal amount of each Bid Rate Advance may not exceed the applicable amount set forth in the related Bid Rate Advance Borrowing Notice; (ii) the principal amount of each Bid Rate Loan must be $1,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) the acceptance of offers may be made only on the basis of ascending Absolute Rates or Index Rate Bid Margins within each Interest Period; and (iv) the Borrower may not accept any offer that is described in §2.9(c)(iii) or that otherwise fails to comply with the requirements hereof. (f) If two or more Banks have submitted Competitive Bids at the same Absolute Rate or Index Rate Bid Margin, as the case may be, for the same Interest Period, and the result of accepting all of such Competitive Bids in whole (together with any other Competitive Bids at lower Absolute Rates or Index Rate Bid Margins, as the case may be, accepted for such Interest Period in conformity with the requirements of §2.9(e)(iii)) would be to cause the aggregate outstanding principal amount of the applicable Bid Rate Advance to exceed the amount specified therefor in the related Bid Rate Advance Borrowing Notice, then, unless otherwise agreed by the Borrower, the Agent and such Banks, such Competitive Bids shall be accepted as nearly as possible in proportion to the amount offered by each such Bank in respect of such Interest Period, with such accepted amounts being rounded to the nearest whole multiple of $1,000,000. (g) The Agent shall promptly notify each Bank having submitted a Competitive Bid whether or not its offer has been accepted and, if its offer has been accepted, of the amount of the Bid Rate Loan or Bid Rate Loans to be made by it on the date of the applicable Bid Rate Advance. Any Competitive Bid or portion thereof that is not accepted by the Borrower by the applicable time specified in §2.9(e) shall be deemed rejected. (h) If any Bid Rate Advance is to consist of Index Rate Loans, the Agent shall determine Term SOFR, the Eurocurrency RateAlternative Currency Daily Rate or the Alternative Currency Term Rate, as applicable, for the relevant Interest Period, and promptly after making such determination, shall notify the Borrower and the Banks that will be participating in such Bid Rate Advance of such Eurocurrency Raterate. (i) Each Bank that has received notice pursuant to §2.9(g) that all or a portion of its Competitive Bid has been accepted by the Borrower shall make the amount of its Bid Rate Loan(s) available to the Agent in Same Day Funds at the Agent’s Funding Office not later than 1:00 p.m. on the date of the requested Bid Rate Advance. Upon satisfaction of the applicable conditions set forth in §13, the Agent shall make all funds so received available to the Borrower in like funds as received by the Agent. (j) After each Competitive Bid auction pursuant to this §2.9, the Agent shall notify each Bank that submitted a Competitive Bid in such auction of the ranges of bids submitted (without the bidder’s name) and accepted for each Bid Rate Loan and the aggregate amount of each Bid Rate Advance. (k) Within the limits and on the conditions set forth in this §2.9, the Borrower may from time to time borrow under this §2.9, repay pursuant to §2.9(f), and reborrow under this §2.9. (l) Each Bid Rate Loan shall bear interest on the outstanding principal amount thereof for the Interest Period therefor at a rate per annum equal to Term SOFR, the Eurocurrency RateAlternative Currency Daily Rate or the Alternative Currency Term Rate, as applicable, for such Interest Period plus (or minus) the Index Rate Bid Margin, or at the Absolute Rate for such Interest Period, as the case may be. Interest on Bid Rate Loans shall be calculated for actual days elapsed on the basis of a 360-day year. The Borrower hereby absolutely and unconditionally promises to pay to the Agent for the account of each Bank which has made a Bid Rate Loan to it, on the last day of the Interest Period in respect thereof or such earlier date to which the maturity of such Bid Rate Loan has been accelerated hereunder, the then unpaid principal amount of such Bid Rate Loan and all accrued but unpaid interest thereon. The Borrower shall have no right to prepay any principal amount of any Bid Rate Loan unless, and then only on the terms, specified by the Borrower for such Bid Rate Loan in the related Bid Rate Advance Borrowing Notice and subject to payment of Eurocurrency Breakage Costs and other compensation, if any, as provided in §5.9. (m) The Bid Rate Loans shall be evidenced by one or more accounts or records maintained by the Banks and by the Agent in the ordinary course of business. The accounts or records maintained by the Agent and the Banks shall be prima facie evidence of the amount of the Bid Rate Loans made by the Banks to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Bid Rate Loans. In the event of any conflict between the accounts and records maintained by any Bank and the accounts and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error. Upon the request of any Bank made through the Agent, the Borrower shall execute and deliver to such Bank (through the Agent) a Bid Rate Note payable to the order of such Bank in an aggregate principal amount equal to such Bank’s Bid Rate Loans, which shall evidence such Bank’s Bid Rate Loans in addition to such accounts or records. Each Bank may attach schedules to its Bid Rate Note and endorse thereon the date the date, Type (if applicable), amount and maturity of its Bid Rate Loans and payments with respect thereto. (n) Each Existing Bid Rate Advance, upon the effectiveness of this Agreement, shall automatically be deemed to be a Bid Rate Advance made under and pursuant to this Agreement for all purposes.
Appears in 1 contract
Samples: Credit Agreement (Boston Properties LTD Partnership)
Bid Rate Advances. (a) Subject to the terms and conditions set forth herein, each Bank agrees that the Borrower may from time to time request the Banks to submit offers to make Bid Rate Loans, in Dollars or in one or more Alternative Currencies, to the Borrower prior to the Maturity Date pursuant to this §2.9; provided, however, that after giving effect to any Bid Rate Advance, (i) the Outstanding Amount of all Revolving Credit Loans, Bid Rate Loans and Letter of Credit Obligations shall not at any time exceed the Total Revolving Credit Commitment and (ii) the aggregate amount of all Bid Rate Advances then outstanding (including the requested Bid Rate Advance) shall not exceed the Bid Rate Maximum Amount. There shall not be more than ten (10) different Interest Periods in effect with respect to Bid Rate Loans at any time.
(b) The Borrower may request the submission of Competitive Bids by delivering a notice, in the form attached hereto as Exhibit D-2 (a “Bid Rate Advance Borrowing Notice”) to the Agent not later than 12:00 noon (A) one (1) Business Day prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (B) four (4) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, and (C) five (5) Business Days (or six (6) Business Days in the case of a Special Notice Currency) prior to the date of any proposed Bid Rate Advance that is to consist of Absolute Rate Loans or Index Indexed Rate Loans in an Alternative Currency other than Canadian Dollars. Each Bid Rate Advance Borrowing Notice shall specify (I) the requested date of the Bid Rate Advance (which shall be a Business Day), (II) the aggregate principal amount of Bid Rate Loans requested (which must be $5,000,000 or a whole multiple of $1,000,000 in excess thereof), (III) the Type of Bid Rate Loans requested, (IV) the duration of the Interest Period with respect thereto, and (V) whether such Bid Rate Advance is to be advanced in an Alternative Currency and, if so, which Alternative Currency, and shall be signed by an Authorized Officer of the Borrower. No Bid Rate Advance Borrowing Notice shall contain a request for (A) more than one Type of Bid Rate Loan or (B) Bid Rate Loans having more than three different Interest Periods.
(c) The procedures for the submission of Competitive Bids by the Banks are as follows:
(i) The Agent shall promptly notify each Bank of each Bid Rate Advance Borrowing Notice received by it from the Borrower and the contents of such Bid Rate Advance Borrowing Notice.
(ii) Each Bank may (but shall have no obligation to) submit a Competitive Bid containing an offer to make one or more Bid Rate Loans in response to such Bid Rate Advance Borrowing Notice. Such Competitive Bid must be delivered to the Agent not later than 10:30 a.m. (A) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (B) three (3) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, and (C) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Indexed Rate Loans in an Alternative Currency other than Canadian Dollars; provided, however, that any Competitive Bid submitted by BOA in its capacity as a Bank in response to any Bid Rate Advance Borrowing Notice must be submitted to the Agent not later than 10:15 a.m. on the date on which Competitive Bids are required to be delivered by the other Banks in response to such Bid Rate Advance Borrowing Notice. Each Competitive Bid shall specify (A) the proposed date of the Bid Rate Advance; (B) the principal amount of each Bid Rate Loan for which such Competitive Bid is being made, which principal amount (x) may be equal to, greater than or less than the Commitment of the bidding Bank, (y) must be $1,000,000 or a whole multiple of $1,000,000 in excess thereof, and (z) may not exceed the principal amount of Bid Rate Loans for which Competitive Bids were requested; (C) if the proposed Bid Rate Advance is to consist of Absolute Rate Bid Rate Loans, the Absolute Rate offered for each such Bid Rate Loan and the Interest Period applicable thereto; (D) if the proposed Bid Rate Advance is to consist of Index Rate Loans, the Index Rate Bid Margin with respect to each such Index Rate Loan and the Interest Period applicable thereto; (E) the identity of the bidding Bank; and (F) if the proposed Bid Rate Advance is to be advanced in an Alternative Currency, specifying which Alternative Currency.
(iii) Any Competitive Bid shall be disregarded if it (A) is received after the applicable time specified in clause (ii) above, (B) is not substantially in the form of a Competitive Bid as specified herein, (C) contains qualifying, conditional or similar language, (D) proposes terms other than or in addition to those set forth in the applicable Bid Rate Advance Borrowing Notice, or (E) is otherwise not responsive to such Bid Rate Advance Borrowing Notice. Any Bank may correct a Competitive Bid containing a manifest error by submitting a corrected Competitive Bid (identified as such) not later than the applicable time required for submission of Competitive Bids. Any such submission of a corrected Competitive Bid shall constitute a revocation of the Competitive Bid that contained the manifest error. The Agent may, but shall not be required to, notify any Bank of any manifest error it detects in such Bank’s Competitive Bid. The Agent shall promptly notify the Borrower of any disregarded Competitive Bid.
(iv) Subject only to the provisions of §§5.4, 5.5 and 13 and clause (iii) above, each Competitive Bid shall be irrevocable.
(d) Not later than 11:00 a.m. (i) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (ii) three Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, or (iii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Indexed Rate Loans in an Alternative Currency other than Canadian Dollars, the Agent shall notify the Borrower of the identity of each Bank that has submitted a Competitive Bid that complies with §2.9(c) and of the terms of the offers contained in each such Competitive Bid.
(e) Not later than 11:30 a.m. (i) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (ii) three (3) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, or (iii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Indexed Rate Loans in an Alternative Currency other than Canadian Dollars, the Borrower shall notify the Agent of its acceptance or rejection of the offers of which it was notified pursuant to §2.9(d). The Borrower shall be under no obligation to accept any Competitive Bid and may choose to reject all Competitive Bids. In the case of acceptance, such notice shall specify the aggregate principal amount of Competitive Bids for each Interest Period that is accepted. The Borrower may accept any Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Rate Advance may not exceed the applicable amount set forth in the related Bid Rate Advance Borrowing Notice;
(ii) the principal amount of each Bid Rate Loan must be $1,000,000 or a whole multiple of $1,000,000 in excess thereof;
(iii) the acceptance of offers may be made only on the basis of ascending Absolute Rates or Index Rate Bid Margins within each Interest Period; and
(iv) the Borrower may not accept any offer that is described in §2.9(c)(iii) or that otherwise fails to comply with the requirements hereof.
(f) If two or more Banks have submitted Competitive Bids at the same Absolute Rate or Index Rate Bid Margin, as the case may be, for the same Interest Period, and the result of accepting all of such Competitive Bids in whole (together with any other Competitive Bids at lower Absolute Rates or Index Rate Bid Margins, as the case may be, accepted for such Interest Period in conformity with the requirements of §2.9(e)(iii)) would be to cause the aggregate outstanding principal amount of the applicable Bid Rate Advance to exceed the amount specified therefor in the related Bid Rate Advance Borrowing Notice, then, unless otherwise agreed by the Borrower, the Agent and such Banks, such Competitive Bids shall be accepted as nearly as possible in proportion to the amount offered by each such Bank in respect of such Interest Period, with such accepted amounts being rounded to the nearest whole multiple of $1,000,000.
(g) The Agent shall promptly notify each Bank having submitted a Competitive Bid whether or not its offer has been accepted and, if its offer has been accepted, of the amount of the Bid Rate Loan or Bid Rate Loans to be made by it on the date of the applicable Bid Rate Advance. Any Competitive Bid or portion thereof that is not accepted by the Borrower by the applicable time specified in §2.9(e) shall be deemed rejected.
(h) If any Bid Rate Advance is to consist of Index Rate Loans, the Agent shall determine Term SOFR, the Eurocurrency RateAlternative Currency Daily Rate or the Alternative Currency Term Rate, as applicable, for the relevant Interest Period, and promptly after making such determination, shall notify the Borrower and the Banks that will be participating in such Bid Rate Advance of such Eurocurrency RaterateRate.
(i) Each Bank that has received notice pursuant to §2.9(g) that all or a portion of its Competitive Bid has been accepted by the Borrower shall make the amount of its Bid Rate Loan(s) available to the Agent in Same Day Funds at the Agent’s Funding Office not later than 1:00 p.m. on the date of the requested Bid Rate Advance. Upon satisfaction of the applicable conditions set forth in §13, the Agent shall make all funds so received available to the Borrower in like funds as received by the Agent.
(j) After each Competitive Bid auction pursuant to this §2.9, the Agent shall notify each Bank that submitted a Competitive Bid in such auction of the ranges of bids submitted (without the bidder’s name) and accepted for each Bid Rate Loan and the aggregate amount of each Bid Rate Advance.
(k) Within the limits and on the conditions set forth in this §2.9, the Borrower may from time to time borrow under this §2.9, repay pursuant to §2.9(f), and reborrow under this §2.9.
(l) Each Bid Rate Loan shall bear interest on the outstanding principal amount thereof for the Interest Period therefor at a rate per annum equal to Term SOFR, the Eurocurrency RateAlternative Currency Daily Rate or the Alternative Currency Term Rate, as applicable, for such Interest Period plus (or minus) the Index Rate Bid Margin, or at the Absolute Rate for such Interest Period, as the case may be. Interest on Bid Rate Loans shall be calculated for actual days elapsed on the basis of a 360-day year. The Borrower hereby absolutely and unconditionally promises to pay to the Agent for the account of each Bank which has made a Bid Rate Loan to it, on the last day of the Interest Period in respect thereof or such earlier date to which the maturity of such Bid Rate Loan has been accelerated hereunder, the then unpaid principal amount of such Bid Rate Loan and all accrued but unpaid interest thereon. The Borrower shall have no right to prepay any principal amount of any Bid Rate Loan unless, and then only on the terms, specified by the Borrower for such Bid Rate Loan in the related Bid Rate Advance Borrowing Notice and subject to payment of Eurocurrency Breakage Costs and other compensation, if any, as provided in §5.9.
(m) The Bid Rate Loans shall be evidenced by one or more accounts or records maintained by the Banks and by the Agent in the ordinary course of business. The accounts or records maintained by the Agent and the Banks shall be prima facie evidence of the amount of the Bid Rate Loans made by the Banks to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Bid Rate Loans. In the event of any conflict between the accounts and records maintained by any Bank and the accounts and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error. Upon the request of any Bank made through the Agent, the Borrower shall execute and deliver to such Bank (through the Agent) a Bid Rate Note payable to the order of such Bank in an aggregate principal amount equal to such Bank’s Bid Rate Loans, which shall evidence such Bank’s Bid Rate Loans in addition to such accounts or records. Each Bank may attach schedules to its Bid Rate Note and endorse thereon the date the date, Type (if applicable), amount and maturity of its Bid Rate Loans and payments with respect thereto.
(n) Each Existing Bid Rate Advance, upon the effectiveness of this Agreement, shall automatically be deemed to be a Bid Rate Advance made under and pursuant to this Agreement for all purposes.
Appears in 1 contract
Samples: Credit Agreement (Boston Properties LTD Partnership)
Bid Rate Advances. (a) Subject to Each Bank severally agrees that, on the terms and conditions set forth hereinin this Agreement, each Bank agrees that the Borrower may request and receive Bid Rate Advances under this §2.9 from time to time request on any Business Day during the Banks to submit offers to make Bid Rate Loans, in Dollars or in one or more Alternative Currencies, to period from the Borrower date hereof until the date occurring 30 days prior to the Maturity Date pursuant to this §2.9in the manner set forth below; provided, however, that after giving effect to any that:
(i) following the making of each Bid Rate Advance, (i) the Outstanding Amount aggregate principal amount of all Revolving Credit LoansLoans then outstanding, plus the aggregate amount of all Swingline Loans then outstanding, plus the aggregate amount of all Bid Rate Loans and Advances then outstanding (including the requested Bid Rate Advance), plus the Maximum Drawing Amount and, without double-counting the portion, if any, of any Letter of Credit which is drawn and included in the Revolving Credit Loans or the Maximum Drawing Amount, plus all outstanding Reimbursement Obligations at such time, shall not at any time exceed the Total Revolving Credit Commitment and in effect at such time.
(ii) at no time shall the aggregate amount of all Bid Rate Advances then outstanding (including the requested Bid Rate Advance) shall not exceed the Bid Rate Maximum Amount. There shall not be more than ten ; and
(10iii) different Interest Periods in effect with respect to at the time the Borrower requests a Bid Rate Loans at any timeAdvance and after giving effect to the making thereof, no Default or Event of Default has occurred and is continuing.
(b) The procedures for the solicitation and acceptance of Bid Rate Loans are set forth below (with the references to time of day meaning Boston, Massachusetts time):
(i) The Borrower may request a Bid Rate Advance under this §2.9(b) by giving the submission of Competitive Bids by delivering a Agent irrevocable notice, in the form attached hereto as Exhibit D-2 (a “Bid Rate Advance Borrowing Notice”) ), specifying the date and aggregate amount of the proposed Bid Rate Advance, the maturity date for repayment of each Bid Rate Loan to be made as part of such Bid Rate Advance (which maturity date may not be earlier than, in the Agent case of an Absolute Rate Auction, the date occurring one day, and in the case of an Indexed Rate Auction, the date occurring seven days, after the date of the related Bid Rate Advance or later than, in either case, the earlier of the day occurring 180 days after the date of such Bid Rate Advance and the Maturity Date), and any other terms to be applicable to such Bid Rate Advance, not later than 12:00 noon 11:00 a.m.
(A) in the case of an Absolute Rate Auction, one (1) Business Day prior to the requested date of any the proposed Bid Rate Advance that is to consist of Absolute Rate Loans in DollarsAdvance, and (B) in the case of an Indexed Rate Auction, four (4) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, and (C) five (5) Business Days (or six (6) Business Days in the case of a Special Notice Currency) prior to the date of any proposed Bid Rate Advance that is to consist Advance. The Agent shall, promptly following its receipt of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars. Each a Bid Rate Advance Borrowing Notice shall specify (I) the requested date of the Bid Rate Advance (which shall be a Business Dayunder this §2.9(b), (II) the aggregate principal amount of Bid Rate Loans requested (which must be $5,000,000 or a whole multiple of $1,000,000 in excess thereof), (III) the Type of Bid Rate Loans requested, (IV) the duration of the Interest Period with respect thereto, and (V) whether such Bid Rate Advance is to be advanced in an Alternative Currency and, if so, which Alternative Currency, and shall be signed by an Authorized Officer of the Borrower. No Bid Rate Advance Borrowing Notice shall contain a request for (A) more than one Type of Bid Rate Loan or (B) Bid Rate Loans having more than three different Interest Periods.
(c) The procedures for the submission of Competitive Bids by the Banks are as follows:
(i) The Agent shall promptly notify each Bank of each Bid Rate Advance Borrowing Notice received such request by it from the Borrower and the contents sending such Bank a copy of such Bid Rate Advance Borrowing Notice.
(ii) Each Bank may (but shall have no obligation to) submit a Competitive Bid containing an may, if, in its sole discretion, it elects to do so, irrevocably offer to make one or more Bid Rate Loans in response to the Borrower as part of such proposed Bid Rate Advance Borrowing Notice. Such Competitive Bid must be delivered at a rate or rates of interest specified by such Bank in its sole discretion, by providing written notice to the Agent not later than 10:30 a.m. (which shall give prompt notice thereof to the Borrower), before 12:00 p.m. (or if such Bank is serving as the Agent, before 11:30 a.m.) on (A) on the requested date of any such proposed Bid Rate Advance that is to consist of Absolute Rate Loans in DollarsAdvance, (B) three (3) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, and (C) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of an Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars; providedAuction, however, that any Competitive Bid submitted by BOA in its capacity as a Bank in response to any Bid Rate Advance Borrowing Notice must be submitted to the Agent not later than 10:15 a.m. on the date on which Competitive Bids are required to be delivered by the other Banks in response to such Bid Rate Advance Borrowing Notice. Each Competitive Bid shall specify (A) the proposed date of the Bid Rate Advance; and (B) the principal date that is three Business Days before the date of such proposed Bid Rate Advance, in the case of an Indexed Rate Auction, in the form of Exhibit D-3 attached hereto (the “Competitive Bid Notice”) of the minimum amount and maximum amount of each Bid Rate Loan for which such Competitive Bid is being made, which principal amount (x) may Bank would be equal to, greater than or less than the Commitment willing to make as part of the bidding Bank, (y) must be $1,000,000 or a whole multiple of $1,000,000 in excess thereof, and (z) may not exceed the principal amount of Bid Rate Loans for which Competitive Bids were requested; (C) if the such proposed Bid Rate Advance is (which amounts may, subject to consist the proviso to the first sentence of Absolute Rate Bid Rate Loans§2.9(a), the Absolute Rate offered for each exceed such Bid Rate Loan Bank’s Commitment) and the Interest Period applicable thereto; (D) if the proposed Bid Rate Advance is to consist rate or rates of Index Rate Loans, the Index Rate Bid Margin with respect to each such Index Rate Loan and the Interest Period applicable thereto; (E) the identity of the bidding Bank; and (F) if the proposed Bid Rate Advance is to be advanced in an Alternative Currency, specifying which Alternative Currency.
(iii) interest therefor. Any Competitive Bid Notice shall be disregarded and given no effect if it (A) is received after the applicable time specified in clause (ii) above, (B) is not substantially in the form of a Competitive Bid as specified herein, (C) contains qualifying, qualifying or conditional or similar language, (D) proposes terms and conditions other than or in addition to those set forth in the applicable Bid Rate Advance Borrowing Notice, Notice or (E) is otherwise not responsive to such Bid Rate Advance Borrowing Notice. Any Bank may correct a Competitive Bid containing a manifest error by submitting a corrected Competitive Bid (identified as such) not later than arrives after the applicable time required for submission of Competitive Bids. Any such submission of a corrected Competitive Bid shall constitute a revocation of the Competitive Bid that contained the manifest error. The Agent may, but shall not be required to, notify any Bank of any manifest error it detects in such Bank’s Competitive Bid. The Agent shall promptly notify the Borrower of any disregarded Competitive Bid.
(iv) Subject only to the provisions of §§5.4, 5.5 and 13 and clause (iii) above, each Competitive Bid shall be irrevocable.
(d) Not later than 11:00 a.m. (i) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (ii) three Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, or (iii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars, the Agent shall notify the Borrower of the identity of each Bank that has submitted a Competitive Bid that complies with §2.9(c) and of the terms of the offers contained in each such Competitive Bid.
(e) Not later than 11:30 a.m. (i) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (ii) three (3) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, or (iii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars, the Borrower shall notify the Agent of its acceptance or rejection of the offers of which it was notified pursuant to §2.9(d). The Borrower shall be under no obligation to accept any Competitive Bid and may choose to reject all Competitive Bids. In the case of acceptance, such notice shall specify the aggregate principal amount of Competitive Bids for each Interest Period that is accepted. The Borrower may accept any Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Rate Advance may not exceed the applicable amount set forth in above for its receipt by the related Bid Rate Advance Borrowing Notice;
(ii) the principal amount of each Bid Rate Loan must be $1,000,000 or a whole multiple of $1,000,000 in excess thereof;Agent.
(iii) the acceptance of offers may be made only on the basis of ascending Absolute Rates or Index Rate Bid Margins within each Interest Period; and
The Borrower shall, in turn, before (ivA) the Borrower may not accept any offer that is described in §2.9(c)(iii) or that otherwise fails to comply with the requirements hereof.
(f) If two or more Banks have submitted Competitive Bids at the same Absolute Rate or Index Rate Bid Margin, as the case may be, for the same Interest Period, and the result of accepting all of such Competitive Bids in whole (together with any other Competitive Bids at lower Absolute Rates or Index Rate Bid Margins, as the case may be, accepted for such Interest Period in conformity with the requirements of §2.9(e)(iii)) would be to cause the aggregate outstanding principal amount of the applicable Bid Rate Advance to exceed the amount specified therefor in the related Bid Rate Advance Borrowing Notice, then, unless otherwise agreed by the Borrower, the Agent and such Banks, such Competitive Bids shall be accepted as nearly as possible in proportion to the amount offered by each such Bank in respect of such Interest Period, with such accepted amounts being rounded to the nearest whole multiple of $1,000,000.
(g) The Agent shall promptly notify each Bank having submitted a Competitive Bid whether or not its offer has been accepted and, if its offer has been accepted, of the amount of the Bid Rate Loan or Bid Rate Loans to be made by it on the date of the applicable Bid Rate Advance. Any Competitive Bid or portion thereof that is not accepted by the Borrower by the applicable time specified in §2.9(e) shall be deemed rejected.
(h) If any Bid Rate Advance is to consist of Index Rate Loans, the Agent shall determine Term SOFR, the Eurocurrency RateAlternative Currency Daily Rate or the Alternative Currency Term Rate, as applicable, for the relevant Interest Period, and promptly after making such determination, shall notify the Borrower and the Banks that will be participating in such Bid Rate Advance of such Eurocurrency Raterate.
(i) Each Bank that has received notice pursuant to §2.9(g) that all or a portion of its Competitive Bid has been accepted by the Borrower shall make the amount of its Bid Rate Loan(s) available to the Agent in Same Day Funds at the Agent’s Funding Office not later than 1:00 p.m. on the date of the requested Bid Rate Advance. Upon satisfaction of the applicable conditions set forth in §13, the Agent shall make all funds so received available to the Borrower in like funds as received by the Agent.
(j) After each Competitive Bid auction pursuant to this §2.9, the Agent shall notify each Bank that submitted a Competitive Bid in such auction of the ranges of bids submitted (without the bidder’s name) and accepted for each Bid Rate Loan and the aggregate amount of each Bid Rate Advance.
(k) Within the limits and on the conditions set forth in this §2.9, the Borrower may from time to time borrow under this §2.9, repay pursuant to §2.9(f), and reborrow under this §2.9.
(l) Each Bid Rate Loan shall bear interest on the outstanding principal amount thereof for the Interest Period therefor at a rate per annum equal to Term SOFR, the Eurocurrency RateAlternative Currency Daily Rate or the Alternative Currency Term Rate, as applicable, for such Interest Period plus (or minus) the Index Rate Bid Margin, or at the Absolute Rate for such Interest Period, as the case may be. Interest on Bid Rate Loans shall be calculated for actual days elapsed on the basis of a 360-day year. The Borrower hereby absolutely and unconditionally promises to pay to the Agent for the account of each Bank which has made a Bid Rate Loan to it, on the last day of the Interest Period in respect thereof or such earlier date to which the maturity of such Bid Rate Loan has been accelerated hereunder, the then unpaid principal amount of such Bid Rate Loan and all accrued but unpaid interest thereon. The Borrower shall have no right to prepay any principal amount of any Bid Rate Loan unless, and then only on the terms, specified by the Borrower for such Bid Rate Loan in the related Bid Rate Advance Borrowing Notice and subject to payment of Eurocurrency Breakage Costs and other compensation, if any, as provided in §5.9.
(m) The Bid Rate Loans shall be evidenced by one or more accounts or records maintained by the Banks and by the Agent in the ordinary course of business. The accounts or records maintained by the Agent and the Banks shall be prima facie evidence of the amount of the Bid Rate Loans made by the Banks to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Bid Rate Loans. In the event of any conflict between the accounts and records maintained by any Bank and the accounts and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error. Upon the request of any Bank made through the Agent, the Borrower shall execute and deliver to such Bank (through the Agent) a Bid Rate Note payable to the order of such Bank in an aggregate principal amount equal to such Bank’s Bid Rate Loans, which shall evidence such Bank’s Bid Rate Loans in addition to such accounts or records. Each Bank may attach schedules to its Bid Rate Note and endorse thereon the date the date, Type (if applicable), amount and maturity of its Bid Rate Loans and payments with respect thereto.
(n) Each Existing proposed Bid Rate Advance, upon in the effectiveness case of this Agreementan Absolute Rate Auction, shall automatically be deemed to be a and (B) 1:00 p.m. three Business Days before the date of such proposed Bid Rate Advance made under and pursuant to this Agreement for all purposes.Advance, in the case of an Indexed Rate Auction, either:
Appears in 1 contract
Bid Rate Advances. (a) Subject to the terms and conditions set forth herein, each Bank agrees that the Borrower may from time to time request the Banks to submit offers to make Bid Rate Loans, in Dollars or in one or more Alternative Currencies, to the Borrower prior to the Maturity Date pursuant to this §2.9; provided, however, that after giving effect to any Bid Rate Advance, (i) the Outstanding Amount of all Revolving Credit Loans, Bid Rate Loans and Letter of Credit Obligations shall not at any time exceed the Total Revolving Credit Commitment and (ii) the aggregate amount of all Bid Rate Advances then outstanding (including the requested Bid Rate Advance) shall not exceed the Bid Rate Maximum Amount. There shall not be more than ten (10) different Interest Periods in effect with respect to Bid Rate Loans at any time.
(b) The Borrower may request the submission of Competitive Bids by delivering a notice, in the form attached hereto as Exhibit D-2 (a “Bid Rate Advance Borrowing Notice”) to the Agent not later than 12:00 noon (A) one (1) Business Day prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (B) four (4) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, and (C) five (5) Business Days (or six (6) Business Days in the case of a Special Notice Currency) prior to the date of any proposed Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars. Each Bid Rate Advance Borrowing Notice shall specify (I) the requested date of the Bid Rate Advance (which shall be a Business Day), (II) the aggregate principal amount of Bid Rate Loans requested (which must be $5,000,000 or a whole multiple of $1,000,000 in excess thereof), (III) the Type of Bid Rate Loans requested, (IV) the duration of the Interest Period with respect thereto, and (V) whether such Bid Rate Advance is to be advanced in an Alternative Currency and, if so, which Alternative Currency, and shall be signed by an Authorized Officer of the Borrower. No Bid Rate Advance Borrowing Notice shall contain a request for (A) more than one Type of Bid Rate Loan or (B) Bid Rate Loans having more than three different Interest Periods.
(c) The procedures for the submission of Competitive Bids by the Banks are as follows:
(i) The Agent shall promptly notify each Bank of each Bid Rate Advance Borrowing Notice received by it from the Borrower and the contents of such Bid Rate Advance Borrowing Notice.
(ii) Each Bank may (but shall have no obligation to) submit a Competitive Bid containing an offer to make one or more Bid Rate Loans in response to such Bid Rate Advance Borrowing Notice. Such Competitive Bid must be delivered to the Agent not later than 10:30 a.m. (A) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (B) three (3) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, and (C) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars; provided, however, that any Competitive Bid submitted by BOA in its capacity as a Bank in response to any Bid Rate Advance Borrowing Notice must be submitted to the Agent not later than 10:15 a.m. on the date on which Competitive Bids are required to be delivered by the other Banks in response to such Bid Rate Advance Borrowing Notice. Each Competitive Bid shall specify (A) the proposed date of the Bid Rate Advance; (B) the principal amount of each Bid Rate Loan for which such Competitive Bid is being made, which principal amount (x) may be equal to, greater than or less than the Commitment of the bidding Bank, (y) must be $1,000,000 or a whole multiple of $1,000,000 in excess thereof, and (z) may not exceed the principal amount of Bid Rate Loans for which Competitive Bids were requested; (C) if the proposed Bid Rate Advance is to consist of Absolute Rate Bid Rate Loans, the Absolute Rate offered for each such Bid Rate Loan and the Interest Period applicable thereto; (D) if the proposed Bid Rate Advance is to consist of Index Rate Loans, the Index Rate Bid Margin with respect to each such Index Rate Loan and the Interest Period applicable thereto; (E) the identity of the bidding Bank; and (F) if the proposed Bid Rate Advance is to be advanced in an Alternative Currency, specifying which Alternative Currency.
(iii) Any Competitive Bid shall be disregarded if it (A) is received after the applicable time specified in clause (ii) above, (B) is not substantially in the form of a Competitive Bid as specified herein, (C) contains qualifying, conditional or similar language, (D) proposes terms other than or in addition to those set forth in the applicable Bid Rate Advance Borrowing Notice, or (E) is otherwise not responsive to such Bid Rate Advance Borrowing Notice. Any Bank may correct a Competitive Bid containing a manifest error by submitting a corrected Competitive Bid (identified as such) not later than the applicable time required for submission of Competitive Bids. Any such submission of a corrected Competitive Bid shall constitute a revocation of the Competitive Bid that contained the manifest error. The Agent may, but shall not be required to, notify any Bank of any manifest error it detects in such Bank’s Competitive Bid. The Agent shall promptly notify the Borrower of any disregarded Competitive Bid.
(iv) Subject only to the provisions of §§5.4, 5.5 and 13 and clause (iii) above, each Competitive Bid shall be irrevocable.
(d) Not later than 11:00 a.m. (i) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (ii) three Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, or (iii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars, the Agent shall notify the Borrower of the identity of each Bank that has submitted a Competitive Bid that complies with §2.9(c) and of the terms of the offers contained in each such Competitive Bid.
(e) Not later than 11:30 a.m. (i) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (ii) three (3) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, or (iii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars, the Borrower shall notify the Agent of its acceptance or rejection of the offers of which it was notified pursuant to §2.9(d). The Borrower shall be under no obligation to accept any Competitive Bid and may choose to reject all Competitive Bids. In the case of acceptance, such notice shall specify the aggregate principal amount of Competitive Bids for each Interest Period that is accepted. The Borrower may accept any Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Rate Advance may not exceed the applicable amount set forth in the related Bid Rate Advance Borrowing Notice;
(ii) the principal amount of each Bid Rate Loan must be $1,000,000 or a whole multiple of $1,000,000 in excess thereof;
(iii) the acceptance of offers may be made only on the basis of ascending Absolute Rates or Index Rate Bid Margins within each Interest Period; and
(iv) the Borrower may not accept any offer that is described in §2.9(c)(iii) or that otherwise fails to comply with the requirements hereof.
(f) If two or more Banks have submitted Competitive Bids at the same Absolute Rate or Index Rate Bid Margin, as the case may be, for the same Interest Period, and the result of accepting all of such Competitive Bids in whole (together with any other Competitive Bids at lower Absolute Rates or Index Rate Bid Margins, as the case may be, accepted for such Interest Period in conformity with the requirements of §2.9(e)(iii)) would be to cause the aggregate outstanding principal amount of the applicable Bid Rate Advance to exceed the amount specified therefor in the related Bid Rate Advance Borrowing Notice, then, unless otherwise agreed by the Borrower, the Agent and such Banks, such Competitive Bids shall be accepted as nearly as possible in proportion to the amount offered by each such Bank in respect of such Interest Period, with such accepted amounts being rounded to the nearest whole multiple of $1,000,000.
(g) The Agent shall promptly notify each Bank having submitted a Competitive Bid whether or not its offer has been accepted and, if its offer has been accepted, of the amount of the Bid Rate Loan or Bid Rate Loans to be made by it on the date of the applicable Bid Rate Advance. Any Competitive Bid or portion thereof that is not accepted by the Borrower by the applicable time specified in §2.9(e) shall be deemed rejected.
(h) If any Bid Rate Advance is to consist of Index Rate Loans, the Agent shall determine Term SOFR, the Eurocurrency RateAlternative Alternative Currency Daily Rate or the Alternative Currency Term Rate, as applicable, for the relevant Interest Period, and promptly after making such determination, shall notify the Borrower and the Banks that will be participating in such Bid Rate Advance of such Eurocurrency Rateraterate.
(i) Each Bank that has received notice pursuant to §2.9(g) that all or a portion of its Competitive Bid has been accepted by the Borrower shall make the amount of its Bid Rate Loan(s) available to the Agent in Same Day Funds at the Agent’s Funding Office not later than 1:00 p.m. on the date of the requested Bid Rate Advance. Upon satisfaction of the applicable conditions set forth in §13, the Agent shall make all funds so received available to the Borrower in like funds as received by the Agent.
(j) After each Competitive Bid auction pursuant to this §2.9, the Agent shall notify each Bank that submitted a Competitive Bid in such auction of the ranges of bids submitted (without the bidder’s name) and accepted for each Bid Rate Loan and the aggregate amount of each Bid Rate Advance.
(k) Within the limits and on the conditions set forth in this §2.9, the Borrower may from time to time borrow under this §2.9, repay pursuant to §2.9(f), and reborrow under this §2.9.
(l) Each Bid Rate Loan shall bear interest on the outstanding principal amount thereof for the Interest Period therefor at a rate per annum equal to Term SOFR, the Eurocurrency RateAlternative Alternative Currency Daily Rate or the Alternative Currency Term Rate, as applicable, for such Interest Period plus (or minus) the Index Rate Bid Margin, or at the Absolute Rate for such Interest Period, as the case may be. Interest on Bid Rate Loans shall be calculated for actual days elapsed on the basis of a 360-day year. The Borrower hereby absolutely and unconditionally promises to pay to the Agent for the account of each Bank which has made a Bid Rate Loan to it, on the last day of the Interest Period in respect thereof or such earlier date to which the maturity of such Bid Rate Loan has been accelerated hereunder, the then unpaid principal amount of such Bid Rate Loan and all accrued but unpaid interest thereon. The Borrower shall have no right to prepay any principal amount of any Bid Rate Loan unless, and then only on the terms, specified by the Borrower for such Bid Rate Loan in the related Bid Rate Advance Borrowing Notice and subject to payment of Eurocurrency Breakage Costs and other compensation, if any, as provided in §5.9.
(m) The Bid Rate Loans shall be evidenced by one or more accounts or records maintained by the Banks and by the Agent in the ordinary course of business. The accounts or records maintained by the Agent and the Banks shall be prima facie evidence of the amount of the Bid Rate Loans made by the Banks to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Bid Rate Loans. In the event of any conflict between the accounts and records maintained by any Bank and the accounts and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error. Upon the request of any Bank made through the Agent, the Borrower shall execute and deliver to such Bank (through the Agent) a Bid Rate Note payable to the order of such Bank in an aggregate principal amount equal to such Bank’s Bid Rate Loans, which shall evidence such Bank’s Bid Rate Loans in addition to such accounts or records. Each Bank may attach schedules to its Bid Rate Note and endorse thereon the date the date, Type (if applicable), amount and maturity of its Bid Rate Loans and payments with respect thereto.
(n) Each Existing Bid Rate Advance, upon the effectiveness of this Agreement, shall automatically be deemed to be a Bid Rate Advance made under and pursuant to this Agreement for all purposes.
Appears in 1 contract
Samples: Credit Agreement (Boston Properties LTD Partnership)
Bid Rate Advances. (a) Subject to the terms and conditions set forth herein, each Bank agrees that the Borrower may from time to time request the Banks to submit offers to make Bid Rate Loans, in Dollars or in one or more Alternative Currencies, to the Borrower prior to the Maturity Date pursuant to this §2.9; provided, however, that after giving effect to any Bid Rate Advance, (i) the Outstanding Amount of all Revolving Credit Loans, Bid Rate Loans and Letter of Credit Obligations shall not at any time exceed the Total Revolving Credit Commitment and (ii) the aggregate amount of all Bid Rate Advances then outstanding (including the requested Bid Rate Advance) shall not exceed the Bid Rate Maximum Amount. There shall not be more than ten (10) different Interest Periods in effect with respect to Bid Rate Loans at any time.
(b) The Borrower may request the submission of Competitive Bids by delivering a notice, in the form attached hereto as Exhibit D-2 (a “Bid Rate Advance Borrowing Notice”) to the Agent not later than 12:00 noon (A) one (1) Business Day prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (B) four (4) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, and (C) five (5) Business Days (or six (6) Business Days in the case of a Special Notice Currency) prior to the date of any proposed Bid Rate Advance that is to consist of Absolute Rate Loans or Index Indexed Rate Loans in an Alternative Currency other than Canadian Dollars. Each Bid Rate Advance Borrowing Notice shall specify (I) the requested date of the Bid Rate Advance (which shall be a Business Day), (II) the aggregate principal amount of Bid Rate Loans requested (which must be $5,000,000 or a whole multiple of $1,000,000 in excess thereof), (III) the Type of Bid Rate Loans requested, (IV) the duration of the Interest Period with respect thereto, and (V) whether such Bid Rate Advance is to be advanced in an Alternative Currency and, if so, which Alternative Currency, and shall be signed by an a Authorized Officer of the Borrower. No Bid Rate Advance Borrowing Notice shall contain a request for (A) more than one Type of Bid Rate Loan or (B) Bid Rate Loans having more than three different Interest Periods.
(c) The procedures for the submission of Competitive Bids by the Banks are as follows:
(i) The Agent shall promptly notify each Bank of each Bid Rate Advance Borrowing Notice received by it from the Borrower and the contents of such Bid Rate Advance Borrowing Notice.
(ii) Each Bank may (but shall have no obligation to) submit a Competitive Bid containing an offer to make one or more Bid Rate Loans in response to such Bid Rate Advance Borrowing Notice. Such Competitive Bid must be delivered to the Agent not later than 10:30 a.m. (A) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (B) three (3) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, and (C) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Indexed Rate Loans in an Alternative Currency other than Canadian Dollars; provided, however, that any Competitive Bid submitted by BOA in its capacity as a Bank in response to any Bid Rate Advance Borrowing Notice must be submitted to the Agent not later than 10:15 a.m. on the date on which Competitive Bids are required to be delivered by the other Banks in response to such Bid Rate Advance Borrowing Notice. Each Competitive Bid shall specify (A) the proposed date of the Bid Rate Advance; (B) the principal amount of each Bid Rate Loan for which such Competitive Bid is being made, which principal amount (x) may be equal to, greater than or less than the Commitment of the bidding Bank, (y) must be $1,000,000 or a whole multiple of $1,000,000 in excess thereof, and (z) may not exceed the principal amount of Bid Rate Loans for which Competitive Bids were requested; (C) if the proposed Bid Rate Advance is to consist of Absolute Rate Bid Rate Loans, the Absolute Rate offered for each such Bid Rate Loan and the Interest Period applicable thereto; (D) if the proposed Bid Rate Advance is to consist of Index Rate Loans, the Index Rate Bid Margin with respect to each such Index Rate Loan and the Interest Period applicable thereto; (E) the identity of the bidding Bank; and (F) if the proposed Bid Rate Advance is to be advanced in an Alternative Currency, specifying which Alternative Currency.
(iii) Any Competitive Bid shall be disregarded if it (A) is received after the applicable time specified in clause (ii) above, (B) is not substantially in the form of a Competitive Bid as specified herein, (C) contains qualifying, conditional or similar language, (D) proposes terms other than or in addition to those set forth in the applicable Bid Rate Advance Borrowing Notice, or (E) is otherwise not responsive to such Bid Rate Advance Borrowing Notice. Any Bank may correct a Competitive Bid containing a manifest error by submitting a corrected Competitive Bid (identified as such) not later than the applicable time required for submission of Competitive Bids. Any such submission of a corrected Competitive Bid shall constitute a revocation of the Competitive Bid that contained the manifest error. The Agent may, but shall not be required to, notify any Bank of any manifest error it detects in such Bank’s Competitive Bid. The Agent shall promptly notify the Borrower of any disregarded Competitive Bid.
(iv) Subject only to the provisions of §§5.4, 5.5 and 13 and clause (iii) above, each Competitive Bid shall be irrevocable.
(d) Not later than 11:00 a.m. (i) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (ii) three Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, or (iii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Indexed Rate Loans in an Alternative Currency other than Canadian Dollars, the Agent shall notify the Borrower of the identity of each Bank that has submitted a Competitive Bid that complies with §2.9(c) and of the terms of the offers contained in each such Competitive Bid.
(e) Not later than 11:30 a.m. (i) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (ii) three (3) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, or (iii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Indexed Rate Loans in an Alternative Currency other than Canadian Dollars, the Borrower shall notify the Agent of its acceptance or rejection of the offers of which it was notified pursuant to §2.9(d). The Borrower shall be under no obligation to accept any Competitive Bid and may choose to reject all Competitive Bids. In the case of acceptance, such notice shall specify the aggregate principal amount of Competitive Bids for each Interest Period that is accepted. The Borrower may accept any Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Rate Advance may not exceed the applicable amount set forth in the related Bid Rate Advance Borrowing Notice;
(ii) the principal amount of each Bid Rate Loan must be $1,000,000 or a whole multiple of $1,000,000 in excess thereof;
(iii) the acceptance of offers may be made only on the basis of ascending Absolute Rates or Index Rate Bid Margins within each Interest Period; and
(iv) the Borrower may not accept any offer that is described in §2.9(c)(iii) or that otherwise fails to comply with the requirements hereof.
(f) If two or more Banks have submitted Competitive Bids at the same Absolute Rate or Index Rate Bid Margin, as the case may be, for the same Interest Period, and the result of accepting all of such Competitive Bids in whole (together with any other Competitive Bids at lower Absolute Rates or Index Rate Bid Margins, as the case may be, accepted for such Interest Period in conformity with the requirements of §2.9(e)(iii)) would be to cause the aggregate outstanding principal amount of the applicable Bid Rate Advance to exceed the amount specified therefor in the related Bid Rate Advance Borrowing Notice, then, unless otherwise agreed by the Borrower, the Agent and such Banks, such Competitive Bids shall be accepted as nearly as possible in proportion to the amount offered by each such Bank in respect of such Interest Period, with such accepted amounts being rounded to the nearest whole multiple of $1,000,000.
(g) The Agent shall promptly notify each Bank having submitted a Competitive Bid whether or not its offer has been accepted and, if its offer has been accepted, of the amount of the Bid Rate Loan or Bid Rate Loans to be made by it on the date of the applicable Bid Rate Advance. Any Competitive Bid or portion thereof that is not accepted by the Borrower by the applicable time specified in §2.9(e) shall be deemed rejected.
(h) If any Bid Rate Advance is to consist of Index Rate Loans, the Agent shall determine Term SOFR, the Eurocurrency RateAlternative Currency Daily Rate or the Alternative Currency Term Rate, as applicable, for the relevant Interest Period, and promptly after making such determination, shall notify the Borrower and the Banks that will be participating in such Bid Rate Advance of such Eurocurrency RaterateRate.
(i) Each Bank that has received notice pursuant to §2.9(g) that all or a portion of its Competitive Bid has been accepted by the Borrower shall make the amount of its Bid Rate Loan(s) available to the Agent in Same Day Funds at the Agent’s Funding Office not later than 1:00 p.m. on the date of the requested Bid Rate Advance. Upon satisfaction of the applicable conditions set forth in §13, the Agent shall make all funds so received available to the Borrower in like funds as received by the Agent.
(j) After each Competitive Bid auction pursuant to this §2.9, the Agent shall notify each Bank that submitted a Competitive Bid in such auction of the ranges of bids submitted (without the bidder’s name) and accepted for each Bid Rate Loan and the aggregate amount of each Bid Rate Advance.
(k) Within the limits and on the conditions set forth in this §2.9, the Borrower may from time to time borrow under this §2.9, repay pursuant to §2.9(f), and reborrow under this §2.9.
(l) Each Bid Rate Loan shall bear interest on the outstanding principal amount thereof for the Interest Period therefor at a rate per annum equal to Term SOFR, the Eurocurrency RateAlternative Currency Daily Rate or the Alternative Currency Term Rate, as applicable, for such Interest Period plus (or minus) the Index Rate Bid Margin, or at the Absolute Rate for such Interest Period, as the case may be. Interest on Bid Rate Loans shall be calculated for actual days elapsed on the basis of a 360-day year. The Borrower hereby absolutely and unconditionally promises to pay to the Agent for the account of each Bank which has made a Bid Rate Loan to it, on the last day of the Interest Period in respect thereof or such earlier date to which the maturity of such Bid Rate Loan has been accelerated hereunder, the then unpaid principal amount of such Bid Rate Loan and all accrued but unpaid interest thereon. The Borrower shall have no right to prepay any principal amount of any Bid Rate Loan unless, and then only on the terms, specified by the Borrower for such Bid Rate Loan in the related Bid Rate Advance Borrowing Notice and subject to payment of Eurocurrency Breakage Costs and other compensation, if any, as provided in §5.9.
(m) The Bid Rate Loans shall be evidenced by one or more accounts or records maintained by the Banks and by the Agent in the ordinary course of business. The accounts or records maintained by the Agent and the Banks shall be prima facie evidence of the amount of the Bid Rate Loans made by the Banks to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Bid Rate Loans. In the event of any conflict between the accounts and records maintained by any Bank and the accounts and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error. Upon the request of any Bank made through the Agent, the Borrower shall execute and deliver to such Bank (through the Agent) a Bid Rate Note payable to the order of such Bank in an aggregate principal amount equal to such Bank’s Bid Rate Loans, which shall evidence such Bank’s Bid Rate Loans in addition to such accounts or records. Each Bank may attach schedules to its Bid Rate Note and endorse thereon the date the date, Type (if applicable), amount and maturity of its Bid Rate Loans and payments with respect thereto.
(n) Each Existing Bid Rate Advance, upon the effectiveness of this Agreement, shall automatically be deemed to be a Bid Rate Advance made under and pursuant to this Agreement for all purposes.
Appears in 1 contract
Samples: Revolving Credit Agreement (Boston Properties LTD Partnership)
Bid Rate Advances. (a) Subject to Each Bank severally agrees that, on the terms and conditions set forth hereinin this Agreement, each Bank agrees that the Borrower may request and receive Bid Rate Advances under this §2.9 from time to time request on any Business Day during the Banks to submit offers to make Bid Rate Loans, in Dollars or in one or more Alternative Currencies, to period from the Borrower date hereof until the date occurring 30 days prior to the Maturity Date pursuant to this §2.9in the manner set forth below; provided, however, that after giving effect to any that:
(i) following the making of each Bid Rate Advance, (i) the Outstanding Amount aggregate principal amount of all Revolving Credit LoansLoans then outstanding, plus the aggregate amount of all Swingline Loans then outstanding, plus the aggregate amount of all Bid Rate Loans and Advances then outstanding (including the requested Bid Rate Advance), plus the Maximum Drawing Amount and, without double-counting the portion, if any, of any Letter of Credit which is drawn and included in the Revolving Credit Loans or the Maximum Drawing Amount, plus all outstanding Reimbursement Obligations at such time, shall not at any time exceed the Total Revolving Credit Commitment and in effect at such time;
(ii) at no time shall the aggregate amount of all Bid Rate Advances then outstanding (including the requested Bid Rate Advance) shall not exceed the Bid Rate Maximum Amount. There shall not be more than ten ; and
(10iii) different Interest Periods in effect with respect to at the time the Borrower requests a Bid Rate Loans at any timeAdvance and after giving effect to the making thereof, no Default or Event of Default has occurred and is continuing.
(b) The procedures for the solicitation and acceptance of Bid Rate Loans are set forth below (with the references to time of day meaning Boston, Massachusetts time):
(i) The Borrower may request a Bid Rate Advance under this §2.9(b) by giving the submission of Competitive Bids by delivering a Agent irrevocable notice, in the form attached hereto as Exhibit D-2 (a “Bid Rate Advance Borrowing Notice”) ), specifying the date and aggregate amount of the proposed Bid Rate Advance, the maturity date for repayment of each Bid Rate Loan to be made as part of such Bid Rate Advance (which maturity date may not be earlier than, in the Agent case of an Absolute Rate Auction, the date occurring one day, and in the case of an Indexed Rate Auction, the date occurring seven days, after the date of the related Bid Rate Advance or later than, in either case, the earlier of the day occurring 180 days after the date of such Bid Rate Advance and the Maturity Date), and any other terms to be applicable to such Bid Rate Advance, not later than 12:00 noon 11:00 a.m. (A) in the case of an Absolute Rate Auction, one (1) Business Day prior to the requested date of any the proposed Bid Rate Advance that is to consist of Absolute Rate Loans in DollarsAdvance, and (B) in the case of an Indexed Rate Auction, four (4) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, and (C) five (5) Business Days (or six (6) Business Days in the case of a Special Notice Currency) prior to the date of any proposed Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian DollarsAdvance. Each Bid Rate Advance Borrowing Notice shall specify also include a certification by Borrower in the form set forth in Exhibit D-2 which certifies (Iamong other things) the that, both before and after giving effect to such requested date Bid Rate Advance, each of the Bid Rate Advance (which shall be conditions to borrowing set forth in §13 have been satisfied, including, without limitation, in §13.1. The Agent shall, promptly following its receipt of a Business Day), (II) the aggregate principal amount of Bid Rate Loans requested (which must be $5,000,000 or a whole multiple of $1,000,000 in excess thereof), (III) the Type of Bid Rate Loans requested, (IV) the duration of the Interest Period with respect thereto, and (V) whether such Bid Rate Advance is to be advanced in an Alternative Currency and, if so, which Alternative Currency, and shall be signed by an Authorized Officer of the Borrower. No Bid Rate Advance Borrowing Notice shall contain a request for (A) more than one Type of Bid Rate Loan or (B) Bid Rate Loans having more than three different Interest Periods.
(c) The procedures for the submission of Competitive Bids by the Banks are as follows:
(i) The Agent shall promptly under this §2.9(b), notify each Bank of each Bid Rate Advance Borrowing Notice received such request by it from the Borrower and the contents sending such Bank a copy of such Bid Rate Advance Borrowing Notice.
(ii) Each Bank may (but shall have no obligation to) submit a Competitive Bid containing an may, if, in its sole discretion, it elects to do so, irrevocably offer to make one or more Bid Rate Loans in response to the Borrower as part of such proposed Bid Rate Advance Borrowing Notice. Such Competitive Bid must be delivered at a rate or rates of interest specified by such Bank in its sole discretion, by providing written notice to the Agent not later than (which shall give prompt notice thereof to the Borrower), before 10:30 a.m. (or if such Bank is serving as the Agent, before 10:00 a.m.) on (A) on the requested date of any such proposed Bid Rate Advance that is to consist of Absolute Rate Loans in DollarsAdvance, (B) three (3) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, and (C) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of an Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars; providedAuction, however, that any Competitive Bid submitted by BOA in its capacity as a Bank in response to any Bid Rate Advance Borrowing Notice must be submitted to the Agent not later than 10:15 a.m. on the date on which Competitive Bids are required to be delivered by the other Banks in response to such Bid Rate Advance Borrowing Notice. Each Competitive Bid shall specify (A) the proposed date of the Bid Rate Advance; and (B) the principal date that is three Business Days before the date of such proposed Bid Rate Advance, in the case of an Indexed Rate Auction, in the form of Exhibit D-3 attached hereto (the “Competitive Bid Notice”) of the minimum amount and maximum amount of each Bid Rate Loan for which such Competitive Bid is being made, which principal amount (x) may Bank would be equal to, greater than or less than the Commitment willing to make as part of the bidding Bank, (y) must be $1,000,000 or a whole multiple of $1,000,000 in excess thereof, and (z) may not exceed the principal amount of Bid Rate Loans for which Competitive Bids were requested; (C) if the such proposed Bid Rate Advance is (which amounts may, subject to consist the proviso to the first sentence of Absolute Rate Bid Rate Loans§2.9(a), the Absolute Rate offered for each exceed such Bid Rate Loan Bank’s Commitment) and the Interest Period applicable thereto; (D) if the proposed Bid Rate Advance is to consist rate or rates of Index Rate Loans, the Index Rate Bid Margin with respect to each such Index Rate Loan and the Interest Period applicable thereto; (E) the identity of the bidding Bank; and (F) if the proposed Bid Rate Advance is to be advanced in an Alternative Currency, specifying which Alternative Currency.
(iii) interest therefor. Any Competitive Bid Notice shall be disregarded and given no effect if it (A) is received after the applicable time specified in clause (ii) above, (B) is not substantially in the form of a Competitive Bid as specified herein, (C) contains qualifying, qualifying or conditional or similar language, (D) proposes terms and conditions other than or in addition to those set forth in the applicable Bid Rate Advance Borrowing Notice, Notice or (E) is otherwise not responsive to such Bid Rate Advance Borrowing Notice. Any Bank may correct a Competitive Bid containing a manifest error by submitting a corrected Competitive Bid (identified as such) not later than arrives after the applicable time required for submission of Competitive Bids. Any such submission of a corrected Competitive Bid shall constitute a revocation of the Competitive Bid that contained the manifest error. The Agent may, but shall not be required to, notify any Bank of any manifest error it detects in such Bank’s Competitive Bid. The Agent shall promptly notify the Borrower of any disregarded Competitive Bid.
(iv) Subject only to the provisions of §§5.4, 5.5 and 13 and clause (iii) above, each Competitive Bid shall be irrevocable.
(d) Not later than 11:00 a.m. (i) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (ii) three Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, or (iii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars, the Agent shall notify the Borrower of the identity of each Bank that has submitted a Competitive Bid that complies with §2.9(c) and of the terms of the offers contained in each such Competitive Bid.
(e) Not later than 11:30 a.m. (i) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (ii) three (3) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, or (iii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars, the Borrower shall notify the Agent of its acceptance or rejection of the offers of which it was notified pursuant to §2.9(d). The Borrower shall be under no obligation to accept any Competitive Bid and may choose to reject all Competitive Bids. In the case of acceptance, such notice shall specify the aggregate principal amount of Competitive Bids for each Interest Period that is accepted. The Borrower may accept any Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Rate Advance may not exceed the applicable amount set forth in above for its receipt by the related Bid Rate Advance Borrowing Notice;
(ii) the principal amount of each Bid Rate Loan must be $1,000,000 or a whole multiple of $1,000,000 in excess thereof;Agent.
(iii) the acceptance of offers may be made only on the basis of ascending Absolute Rates or Index Rate Bid Margins within each Interest Period; and
The Borrower shall, in turn, before (ivA) the Borrower may not accept any offer that is described in §2.9(c)(iii) or that otherwise fails to comply with the requirements hereof.
(f) If two or more Banks have submitted Competitive Bids at the same Absolute Rate or Index Rate Bid Margin, as the case may be, for the same Interest Period, and the result of accepting all of such Competitive Bids in whole (together with any other Competitive Bids at lower Absolute Rates or Index Rate Bid Margins, as the case may be, accepted for such Interest Period in conformity with the requirements of §2.9(e)(iii)) would be to cause the aggregate outstanding principal amount of the applicable Bid Rate Advance to exceed the amount specified therefor in the related Bid Rate Advance Borrowing Notice, then, unless otherwise agreed by the Borrower, the Agent and such Banks, such Competitive Bids shall be accepted as nearly as possible in proportion to the amount offered by each such Bank in respect of such Interest Period, with such accepted amounts being rounded to the nearest whole multiple of $1,000,000.
(g) The Agent shall promptly notify each Bank having submitted a Competitive Bid whether or not its offer has been accepted and, if its offer has been accepted, of the amount of the Bid Rate Loan or Bid Rate Loans to be made by it on the date of the applicable Bid Rate Advance. Any Competitive Bid or portion thereof that is not accepted by the Borrower by the applicable time specified in §2.9(e) shall be deemed rejected.
(h) If any Bid Rate Advance is to consist of Index Rate Loans, the Agent shall determine Term SOFR, the Eurocurrency RateAlternative Currency Daily Rate or the Alternative Currency Term Rate, as applicable, for the relevant Interest Period, and promptly after making such determination, shall notify the Borrower and the Banks that will be participating in such Bid Rate Advance of such Eurocurrency Raterate.
(i) Each Bank that has received notice pursuant to §2.9(g) that all or a portion of its Competitive Bid has been accepted by the Borrower shall make the amount of its Bid Rate Loan(s) available to the Agent in Same Day Funds at the Agent’s Funding Office not later than 1:00 p.m. on the date of the requested Bid Rate Advance. Upon satisfaction of the applicable conditions set forth in §13, the Agent shall make all funds so received available to the Borrower in like funds as received by the Agent.
(j) After each Competitive Bid auction pursuant to this §2.9, the Agent shall notify each Bank that submitted a Competitive Bid in such auction of the ranges of bids submitted (without the bidder’s name) and accepted for each Bid Rate Loan and the aggregate amount of each Bid Rate Advance.
(k) Within the limits and on the conditions set forth in this §2.9, the Borrower may from time to time borrow under this §2.9, repay pursuant to §2.9(f), and reborrow under this §2.9.
(l) Each Bid Rate Loan shall bear interest on the outstanding principal amount thereof for the Interest Period therefor at a rate per annum equal to Term SOFR, the Eurocurrency RateAlternative Currency Daily Rate or the Alternative Currency Term Rate, as applicable, for such Interest Period plus (or minus) the Index Rate Bid Margin, or at the Absolute Rate for such Interest Period, as the case may be. Interest on Bid Rate Loans shall be calculated for actual days elapsed on the basis of a 360-day year. The Borrower hereby absolutely and unconditionally promises to pay to the Agent for the account of each Bank which has made a Bid Rate Loan to it, on the last day of the Interest Period in respect thereof or such earlier date to which the maturity of such Bid Rate Loan has been accelerated hereunder, the then unpaid principal amount of such Bid Rate Loan and all accrued but unpaid interest thereon. The Borrower shall have no right to prepay any principal amount of any Bid Rate Loan unless, and then only on the terms, specified by the Borrower for such Bid Rate Loan in the related Bid Rate Advance Borrowing Notice and subject to payment of Eurocurrency Breakage Costs and other compensation, if any, as provided in §5.9.
(m) The Bid Rate Loans shall be evidenced by one or more accounts or records maintained by the Banks and by the Agent in the ordinary course of business. The accounts or records maintained by the Agent and the Banks shall be prima facie evidence of the amount of the Bid Rate Loans made by the Banks to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Bid Rate Loans. In the event of any conflict between the accounts and records maintained by any Bank and the accounts and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error. Upon the request of any Bank made through the Agent, the Borrower shall execute and deliver to such Bank (through the Agent) a Bid Rate Note payable to the order of such Bank in an aggregate principal amount equal to such Bank’s Bid Rate Loans, which shall evidence such Bank’s Bid Rate Loans in addition to such accounts or records. Each Bank may attach schedules to its Bid Rate Note and endorse thereon the date the date, Type (if applicable), amount and maturity of its Bid Rate Loans and payments with respect thereto.
(n) Each Existing proposed Bid Rate Advance, upon in the effectiveness case of this Agreementan Absolute Rate Auction, shall automatically be deemed to be a and (B) 1:00 p.m. three Business Days before the date of such proposed Bid Rate Advance made under and pursuant to this Agreement for all purposes.Advance, in the case of an Indexed Rate Auction, either:
Appears in 1 contract
Bid Rate Advances. (a) Subject to Each Bank severally agrees that, on the terms and conditions set forth hereinin this Agreement, each Bank agrees that the Borrower may request and receive Bid Rate Advances under this §2.9 from time to time request on any Business Day during the Banks to submit offers to make Bid Rate Loans, in Dollars or in one or more Alternative Currencies, to period from the Borrower date hereof until the date occurring 30 days prior to the Maturity Date pursuant to this §2.9in the manner set forth below; provided, however, that after giving effect to any that:
(i) following the making of each Bid Rate Advance, (i) the Outstanding Amount aggregate principal amount of all Revolving Credit LoansLoans then outstanding, plus the aggregate amount of all Swingline Loans then outstanding, plus the aggregate amount of all Bid Rate Loans and Advances then outstanding (including the requested Bid Rate Advance), plus the Maximum Drawing Amount and, without double-counting the portion, if any, of any Letter of Credit which is drawn and included in the Revolving Credit Loans or the Maximum Drawing Amount, plus all outstanding Reimbursement Obligations at such time, shall not at any time exceed the Total Revolving Credit Commitment and in effect at such time;
(ii) at no time shall the aggregate amount of all Bid Rate Advances then outstanding (including the requested Bid Rate Advance) shall not exceed the Bid Rate Maximum Amount. There shall not be more than ten ; and
(10iii) different Interest Periods in effect with respect to at the time the Borrower requests a Bid Rate Loans at any timeAdvance and after giving effect to the making thereof, no Default or Event of Default has occurred and is continuing.
(b) The procedures for the solicitation and acceptance of Bid Rate Loans are set forth below (with the references to time of day meaning New York, New York time):
(i) The Borrower may request a Bid Rate Advance under this §2.9(b) by giving the submission of Competitive Bids by delivering a Agent irrevocable notice, in the form attached hereto as Exhibit D-2 (a “Bid Rate Advance Borrowing Notice”) to the Agent not later than 12:00 noon (A) one (1) Business Day prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars), (B) four (4) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, and (C) five (5) Business Days (or six (6) Business Days in the case of a Special Notice Currency) prior to specifying the date and aggregate amount of any the proposed Bid Rate Advance that is to consist Advance, the maturity date for repayment of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars. Each each Bid Rate Advance Borrowing Notice shall specify (I) the requested date Loan to be made as part of the such Bid Rate Advance (which shall maturity date may not be a Business Day)earlier than, (II) in the aggregate principal amount case of Bid an Absolute Rate Loans requested (which must be $5,000,000 or a whole multiple Auction, the date occurring one day, and in the case of $1,000,000 in excess thereof)an Indexed Rate Auction, (III) the Type of Bid Rate Loans requesteddate occurring seven days, (IV) after the duration date of the Interest Period with respect thereto, and (V) whether such related Bid Rate Advance is to be advanced or later than, in an Alternative Currency andeither case, if so, which Alternative Currency, and shall be signed by an Authorized Officer the earlier of the Borrower. No Bid Rate Advance Borrowing Notice shall contain a request for (A) more than one Type of Bid Rate Loan or (B) Bid Rate Loans having more than three different Interest Periods.
(c) The procedures for day occurring 180 days after the submission of Competitive Bids by the Banks are as follows:
(i) The Agent shall promptly notify each Bank of each Bid Rate Advance Borrowing Notice received by it from the Borrower and the contents date of such Bid Rate Advance Borrowing Notice.
(ii) Each Bank may (but shall have no obligation to) submit a Competitive Bid containing an offer and the Maturity Date), and any other terms to make one or more Bid Rate Loans in response be applicable to such Bid Rate Advance Borrowing Notice. Such Competitive Bid must be delivered to the Agent Advance, not later than 10:30 a.m. (A) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (B) three (3) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, and (C) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars; provided, however, that any Competitive Bid submitted by BOA in its capacity as a Bank in response to any Bid Rate Advance Borrowing Notice must be submitted to the Agent not later than 10:15 a.m. on the date on which Competitive Bids are required to be delivered by the other Banks in response to such Bid Rate Advance Borrowing Notice. Each Competitive Bid shall specify (A) the proposed date of the Bid Rate Advance; (B) the principal amount of each Bid Rate Loan for which such Competitive Bid is being made, which principal amount (x) may be equal to, greater than or less than the Commitment of the bidding Bank, (y) must be $1,000,000 or a whole multiple of $1,000,000 in excess thereof, and (z) may not exceed the principal amount of Bid Rate Loans for which Competitive Bids were requested; (C) if the proposed Bid Rate Advance is to consist of Absolute Rate Bid Rate Loans, the Absolute Rate offered for each such Bid Rate Loan and the Interest Period applicable thereto; (D) if the proposed Bid Rate Advance is to consist of Index Rate Loans, the Index Rate Bid Margin with respect to each such Index Rate Loan and the Interest Period applicable thereto; (E) the identity of the bidding Bank; and (F) if the proposed Bid Rate Advance is to be advanced in an Alternative Currency, specifying which Alternative Currency.
(iii) Any Competitive Bid shall be disregarded if it (A) is received after the applicable time specified in clause (ii) above, (B) is not substantially in the form of a Competitive Bid as specified herein, (C) contains qualifying, conditional or similar language, (D) proposes terms other than or in addition to those set forth in the applicable Bid Rate Advance Borrowing Notice, or (E) is otherwise not responsive to such Bid Rate Advance Borrowing Notice. Any Bank may correct a Competitive Bid containing a manifest error by submitting a corrected Competitive Bid (identified as such) not later than the applicable time required for submission of Competitive Bids. Any such submission of a corrected Competitive Bid shall constitute a revocation of the Competitive Bid that contained the manifest error. The Agent may, but shall not be required to, notify any Bank of any manifest error it detects in such Bank’s Competitive Bid. The Agent shall promptly notify the Borrower of any disregarded Competitive Bid.
(iv) Subject only to the provisions of §§5.4, 5.5 and 13 and clause (iii) above, each Competitive Bid shall be irrevocable.
(d) Not later than 11:00 a.m. (i) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (ii) three Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, or (iii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars, the Agent shall notify the Borrower of the identity of each Bank that has submitted a Competitive Bid that complies with §2.9(c) and of the terms of the offers contained in each such Competitive Bid.
(e) Not later than 11:30 a.m. (i) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (ii) three (3) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, or (iii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars, the Borrower shall notify the Agent of its acceptance or rejection of the offers of which it was notified pursuant to §2.9(d). The Borrower shall be under no obligation to accept any Competitive Bid and may choose to reject all Competitive Bids. In the case of acceptance, such notice shall specify the aggregate principal amount of Competitive Bids for each Interest Period that is accepted. The Borrower may accept any Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Rate Advance may not exceed the applicable amount set forth in the related Bid Rate Advance Borrowing Notice;
(ii) the principal amount of each Bid Rate Loan must be $1,000,000 or a whole multiple of $1,000,000 in excess thereof;
(iii) the acceptance of offers may be made only on the basis of ascending Absolute Rates or Index Rate Bid Margins within each Interest Period; and
(iv) the Borrower may not accept any offer that is described in §2.9(c)(iii) or that otherwise fails to comply with the requirements hereof.
(f) If two or more Banks have submitted Competitive Bids at the same Absolute Rate or Index Rate Bid Margin, as the case may be, for the same Interest Period, and the result of accepting all of such Competitive Bids in whole (together with any other Competitive Bids at lower Absolute Rates or Index Rate Bid Margins, as the case may be, accepted for such Interest Period in conformity with the requirements of §2.9(e)(iii)) would be to cause the aggregate outstanding principal amount of the applicable Bid Rate Advance to exceed the amount specified therefor in the related Bid Rate Advance Borrowing Notice, then, unless otherwise agreed by the Borrower, the Agent and such Banks, such Competitive Bids shall be accepted as nearly as possible in proportion to the amount offered by each such Bank in respect of such Interest Period, with such accepted amounts being rounded to the nearest whole multiple of $1,000,000.
(g) The Agent shall promptly notify each Bank having submitted a Competitive Bid whether or not its offer has been accepted and, if its offer has been accepted, of the amount of the Bid Rate Loan or Bid Rate Loans to be made by it on the date of the applicable Bid Rate Advance. Any Competitive Bid or portion thereof that is not accepted by the Borrower by the applicable time specified in §2.9(e) shall be deemed rejected.
(h) If any Bid Rate Advance is to consist of Index Rate Loans, the Agent shall determine Term SOFR, the Eurocurrency RateAlternative Currency Daily Rate or the Alternative Currency Term Rate, as applicable, for the relevant Interest Period, and promptly after making such determination, shall notify the Borrower and the Banks that will be participating in such Bid Rate Advance of such Eurocurrency Raterate.
(i) Each Bank that has received notice pursuant to §2.9(g) that all or a portion of its Competitive Bid has been accepted by the Borrower shall make the amount of its Bid Rate Loan(s) available to the Agent in Same Day Funds at the Agent’s Funding Office not later than 1:00 p.m. on the date of the requested Bid Rate Advance. Upon satisfaction of the applicable conditions set forth in §13, the Agent shall make all funds so received available to the Borrower in like funds as received by the Agent.
(j) After each Competitive Bid auction pursuant to this §2.9, the Agent shall notify each Bank that submitted a Competitive Bid in such auction of the ranges of bids submitted (without the bidder’s name) and accepted for each Bid Rate Loan and the aggregate amount of each Bid Rate Advance.
(k) Within the limits and on the conditions set forth in this §2.9, the Borrower may from time to time borrow under this §2.9, repay pursuant to §2.9(f), and reborrow under this §2.9.
(l) Each Bid Rate Loan shall bear interest on the outstanding principal amount thereof for the Interest Period therefor at a rate per annum equal to Term SOFR, the Eurocurrency RateAlternative Currency Daily Rate or the Alternative Currency Term Rate, as applicable, for such Interest Period plus (or minus) the Index Rate Bid Margin, or at the Absolute Rate for such Interest Period, as the case may be. Interest on Bid Rate Loans shall be calculated for actual days elapsed on the basis of a 360-day year. The Borrower hereby absolutely and unconditionally promises to pay to the Agent for the account of each Bank which has made a Bid Rate Loan to it, on the last day of the Interest Period in respect thereof or such earlier date to which the maturity of such Bid Rate Loan has been accelerated hereunder, the then unpaid principal amount of such Bid Rate Loan and all accrued but unpaid interest thereon. The Borrower shall have no right to prepay any principal amount of any Bid Rate Loan unless, and then only on the terms, specified by the Borrower for such Bid Rate Loan in the related Bid Rate Advance Borrowing Notice and subject to payment of Eurocurrency Breakage Costs and other compensation, if any, as provided in §5.9.
(m) The Bid Rate Loans shall be evidenced by one or more accounts or records maintained by the Banks and by the Agent in the ordinary course of business. The accounts or records maintained by the Agent and the Banks shall be prima facie evidence of the amount of the Bid Rate Loans made by the Banks to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Bid Rate Loans. In the event of any conflict between the accounts and records maintained by any Bank and the accounts and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error. Upon the request of any Bank made through the Agent, the Borrower shall execute and deliver to such Bank (through the Agent) a Bid Rate Note payable to the order of such Bank in an aggregate principal amount equal to such Bank’s Bid Rate Loans, which shall evidence such Bank’s Bid Rate Loans in addition to such accounts or records. Each Bank may attach schedules to its Bid Rate Note and endorse thereon the date the date, Type (if applicable), amount and maturity of its Bid Rate Loans and payments with respect thereto.
(n) Each Existing Bid Rate Advance, upon the effectiveness of this Agreement, shall automatically be deemed to be a Bid Rate Advance made under and pursuant to this Agreement for all purposes.a.m.
Appears in 1 contract
Samples: Revolving Credit Agreement (Boston Properties LTD Partnership)
Bid Rate Advances. (a) Subject to Each Bank severally agrees that, on the terms and conditions set forth hereinin this Agreement, each Bank agrees that the Borrower may request and receive Bid Rate Advances under this Section 2.9 from time to time request on any Business Day during the Banks to submit offers to make Bid Rate Loans, in Dollars or in one or more Alternative Currencies, to period from the Borrower date hereof until the date occurring 30 days prior to the Maturity Date pursuant to this §2.9in the manner set forth below; providedPROVIDED, howeverHOWEVER, that after giving effect to any that:
(i) following the making of each Bid Rate Advance, (i) the Outstanding Amount aggregate principal amount of all Revolving Credit LoansLoans then outstanding, PLUS the aggregate amount of all Swingline Loans then outstanding, PLUS the aggregate amount of all Bid Rate Loans and Advances then outstanding (including the requested Bid Rate Advance), PLUS the Maximum Drawing Amount and, without double-counting the portion, if any, of any Letter of Credit which is drawn and included in the Revolving Credit Loans or the Maximum Drawing Amount, PLUS all outstanding Reimbursement Obligations at such time, shall not at any time exceed the lesser of (A) the Total Revolving Credit Commitment and in effect at such time or (B) the Borrowing Base Availability in effect at such time;
(ii) at no time shall the aggregate amount of all Bid Rate Advances then outstanding (including the requested Bid Rate Advance) shall not exceed the Bid Rate Maximum Amount. There shall not be more than ten ; and
(10iii) different Interest Periods in effect with respect to at the time the Borrower requests a Bid Rate Loans at any timeAdvance and after giving effect to the making thereof, no Default or Event of Default has occurred and is continuing.
(b) The procedures for the solicitation and acceptance of Bid Rate Loans are set forth below (with the references to time of day meaning Boston, Massachusetts time):
(i) The Borrower may request a Bid Rate Advance under this Section 2.9(b) by giving the submission of Competitive Bids by delivering a Agent irrevocable notice, in the form attached hereto as Exhibit D-2 (a “"Bid Rate Advance Borrowing Notice”) "), specifying the date and aggregate amount of the proposed Bid Rate Advance, the maturity date for repayment of each Bid Rate Loan to be made as part of such Bid Rate Advance (which maturity date may not be earlier than, in the Agent case of an Absolute Rate Auction, the date occurring one day, and in the case of an Indexed Rate Auction, the date occurring seven days, after the date of the related Bid Rate Advance or later than, in either case, the earlier of the day occurring 180 days after the date of such Bid Rate Advance and the Maturity Date), and any other terms to be applicable to such Bid Rate Advance, not later than 12:00 noon 11:00 a.m.
(A) in the case of an Absolute Rate Auction, one (1) Business Day prior to the requested date of any the proposed Bid Rate Advance that is to consist of Absolute Rate Loans in DollarsAdvance, and (B) in the case of an Indexed Rate Auction, four (4) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, and (C) five (5) Business Days (or six (6) Business Days in the case of a Special Notice Currency) prior to the date of any proposed Bid Rate Advance that is to consist Advance. The Agent shall, promptly following its receipt of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars. Each a Bid Rate Advance Borrowing Notice shall specify (I) the requested date of the Bid Rate Advance (which shall be a Business Dayunder this Section 2.9(b), (II) the aggregate principal amount of Bid Rate Loans requested (which must be $5,000,000 or a whole multiple of $1,000,000 in excess thereof), (III) the Type of Bid Rate Loans requested, (IV) the duration of the Interest Period with respect thereto, and (V) whether such Bid Rate Advance is to be advanced in an Alternative Currency and, if so, which Alternative Currency, and shall be signed by an Authorized Officer of the Borrower. No Bid Rate Advance Borrowing Notice shall contain a request for (A) more than one Type of Bid Rate Loan or (B) Bid Rate Loans having more than three different Interest Periods.
(c) The procedures for the submission of Competitive Bids by the Banks are as follows:
(i) The Agent shall promptly notify each Bank of each Bid Rate Advance Borrowing Notice received such request by it from the Borrower and the contents sending such Bank a copy of such Bid Rate Advance Borrowing Notice.
(ii) Each Bank may (but shall have no obligation to) submit a Competitive Bid containing an may, if, in its sole discretion, it elects to do so, irrevocably offer to make one or more Bid Rate Loans in response to the Borrower as part of such proposed Bid Rate Advance Borrowing Notice. Such Competitive Bid must be delivered at a rate or rates of interest specified by such Bank in its sole discretion, by providing written notice to the Agent not later than 10:30 a.m. (which shall give prompt notice thereof to the Borrower), before 12:00 p.m. (or if such Bank is serving as the Agent, before 11:30 a.m.) on (A) on the requested date of any such proposed Bid Rate Advance that is to consist of Absolute Rate Loans in DollarsAdvance, (B) three (3) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, and (C) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of an Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars; providedAuction, however, that any Competitive Bid submitted by BOA in its capacity as a Bank in response to any Bid Rate Advance Borrowing Notice must be submitted to the Agent not later than 10:15 a.m. on the date on which Competitive Bids are required to be delivered by the other Banks in response to such Bid Rate Advance Borrowing Notice. Each Competitive Bid shall specify (A) the proposed date of the Bid Rate Advance; and (B) the principal date that is three Business Days before the date of such proposed Bid Rate Advance, in the case of an Indexed Rate Auction, in the form of Exhibit D-3 attached hereto (the "Competitive Bid Notice") of the minimum amount and maximum amount of each Bid Rate Loan for which such Competitive Bid is being made, which principal amount (x) may Bank would be equal to, greater than or less than the Commitment willing to make as part of the bidding Bank, (y) must be $1,000,000 or a whole multiple of $1,000,000 in excess thereof, and (z) may not exceed the principal amount of Bid Rate Loans for which Competitive Bids were requested; (C) if the such proposed Bid Rate Advance is (which amounts may, subject to consist the proviso to the first sentence of Absolute Rate Bid Rate LoansSection 2.9(a), the Absolute Rate offered for each exceed such Bid Rate Loan Bank's Commitment) and the Interest Period applicable thereto; (D) if the proposed Bid Rate Advance is to consist rate or rates of Index Rate Loans, the Index Rate Bid Margin with respect to each such Index Rate Loan and the Interest Period applicable thereto; (E) the identity of the bidding Bank; and (F) if the proposed Bid Rate Advance is to be advanced in an Alternative Currency, specifying which Alternative Currency.
(iii) interest therefor. Any Competitive Bid Notice shall be disregarded and given no effect if it (A) is received after the applicable time specified in clause (ii) above, (B) is not substantially in the form of a Competitive Bid as specified herein, (C) contains qualifying, qualifying or conditional or similar language, (D) proposes terms and conditions other than or in addition to those set forth in the applicable Bid -42- Rate Advance Borrowing Notice, Notice or (E) is otherwise not responsive to such Bid Rate Advance Borrowing Notice. Any Bank may correct a Competitive Bid containing a manifest error by submitting a corrected Competitive Bid (identified as such) not later than arrives after the applicable time required for submission of Competitive Bids. Any such submission of a corrected Competitive Bid shall constitute a revocation of the Competitive Bid that contained the manifest error. The Agent may, but shall not be required to, notify any Bank of any manifest error it detects in such Bank’s Competitive Bid. The Agent shall promptly notify the Borrower of any disregarded Competitive Bid.
(iv) Subject only to the provisions of §§5.4, 5.5 and 13 and clause (iii) above, each Competitive Bid shall be irrevocable.
(d) Not later than 11:00 a.m. (i) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (ii) three Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, or (iii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars, the Agent shall notify the Borrower of the identity of each Bank that has submitted a Competitive Bid that complies with §2.9(c) and of the terms of the offers contained in each such Competitive Bid.
(e) Not later than 11:30 a.m. (i) on the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans in Dollars, (ii) three (3) Business Days prior to the requested date of any Bid Rate Advance that is to consist of Index Rate Loans in Dollars or Canadian Dollars, or (iii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Bid Rate Advance that is to consist of Absolute Rate Loans or Index Rate Loans in an Alternative Currency other than Canadian Dollars, the Borrower shall notify the Agent of its acceptance or rejection of the offers of which it was notified pursuant to §2.9(d). The Borrower shall be under no obligation to accept any Competitive Bid and may choose to reject all Competitive Bids. In the case of acceptance, such notice shall specify the aggregate principal amount of Competitive Bids for each Interest Period that is accepted. The Borrower may accept any Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Rate Advance may not exceed the applicable amount set forth in above for its receipt by the related Bid Rate Advance Borrowing Notice;
(ii) the principal amount of each Bid Rate Loan must be $1,000,000 or a whole multiple of $1,000,000 in excess thereof;Agent.
(iii) the acceptance of offers may be made only on the basis of ascending Absolute Rates or Index Rate Bid Margins within each Interest Period; and
The Borrower shall, in turn, before (ivA) the Borrower may not accept any offer that is described in §2.9(c)(iii) or that otherwise fails to comply with the requirements hereof.
(f) If two or more Banks have submitted Competitive Bids at the same Absolute Rate or Index Rate Bid Margin, as the case may be, for the same Interest Period, and the result of accepting all of such Competitive Bids in whole (together with any other Competitive Bids at lower Absolute Rates or Index Rate Bid Margins, as the case may be, accepted for such Interest Period in conformity with the requirements of §2.9(e)(iii)) would be to cause the aggregate outstanding principal amount of the applicable Bid Rate Advance to exceed the amount specified therefor in the related Bid Rate Advance Borrowing Notice, then, unless otherwise agreed by the Borrower, the Agent and such Banks, such Competitive Bids shall be accepted as nearly as possible in proportion to the amount offered by each such Bank in respect of such Interest Period, with such accepted amounts being rounded to the nearest whole multiple of $1,000,000.
(g) The Agent shall promptly notify each Bank having submitted a Competitive Bid whether or not its offer has been accepted and, if its offer has been accepted, of the amount of the Bid Rate Loan or Bid Rate Loans to be made by it on the date of the applicable Bid Rate Advance. Any Competitive Bid or portion thereof that is not accepted by the Borrower by the applicable time specified in §2.9(e) shall be deemed rejected.
(h) If any Bid Rate Advance is to consist of Index Rate Loans, the Agent shall determine Term SOFR, the Eurocurrency RateAlternative Currency Daily Rate or the Alternative Currency Term Rate, as applicable, for the relevant Interest Period, and promptly after making such determination, shall notify the Borrower and the Banks that will be participating in such Bid Rate Advance of such Eurocurrency Raterate.
(i) Each Bank that has received notice pursuant to §2.9(g) that all or a portion of its Competitive Bid has been accepted by the Borrower shall make the amount of its Bid Rate Loan(s) available to the Agent in Same Day Funds at the Agent’s Funding Office not later than 1:00 p.m. on the date of the requested Bid Rate Advance. Upon satisfaction of the applicable conditions set forth in §13, the Agent shall make all funds so received available to the Borrower in like funds as received by the Agent.
(j) After each Competitive Bid auction pursuant to this §2.9, the Agent shall notify each Bank that submitted a Competitive Bid in such auction of the ranges of bids submitted (without the bidder’s name) and accepted for each Bid Rate Loan and the aggregate amount of each Bid Rate Advance.
(k) Within the limits and on the conditions set forth in this §2.9, the Borrower may from time to time borrow under this §2.9, repay pursuant to §2.9(f), and reborrow under this §2.9.
(l) Each Bid Rate Loan shall bear interest on the outstanding principal amount thereof for the Interest Period therefor at a rate per annum equal to Term SOFR, the Eurocurrency RateAlternative Currency Daily Rate or the Alternative Currency Term Rate, as applicable, for such Interest Period plus (or minus) the Index Rate Bid Margin, or at the Absolute Rate for such Interest Period, as the case may be. Interest on Bid Rate Loans shall be calculated for actual days elapsed on the basis of a 360-day year. The Borrower hereby absolutely and unconditionally promises to pay to the Agent for the account of each Bank which has made a Bid Rate Loan to it, on the last day of the Interest Period in respect thereof or such earlier date to which the maturity of such Bid Rate Loan has been accelerated hereunder, the then unpaid principal amount of such Bid Rate Loan and all accrued but unpaid interest thereon. The Borrower shall have no right to prepay any principal amount of any Bid Rate Loan unless, and then only on the terms, specified by the Borrower for such Bid Rate Loan in the related Bid Rate Advance Borrowing Notice and subject to payment of Eurocurrency Breakage Costs and other compensation, if any, as provided in §5.9.
(m) The Bid Rate Loans shall be evidenced by one or more accounts or records maintained by the Banks and by the Agent in the ordinary course of business. The accounts or records maintained by the Agent and the Banks shall be prima facie evidence of the amount of the Bid Rate Loans made by the Banks to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Bid Rate Loans. In the event of any conflict between the accounts and records maintained by any Bank and the accounts and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error. Upon the request of any Bank made through the Agent, the Borrower shall execute and deliver to such Bank (through the Agent) a Bid Rate Note payable to the order of such Bank in an aggregate principal amount equal to such Bank’s Bid Rate Loans, which shall evidence such Bank’s Bid Rate Loans in addition to such accounts or records. Each Bank may attach schedules to its Bid Rate Note and endorse thereon the date the date, Type (if applicable), amount and maturity of its Bid Rate Loans and payments with respect thereto.
(n) Each Existing proposed Bid Rate Advance, upon in the effectiveness case of this Agreementan Absolute Rate Auction, shall automatically be deemed to be a and (B) 1:00 p.m. three Business Days before the date of such proposed Bid Rate Advance made under and pursuant to this Agreement for all purposes.Advance, in the case of an Indexed Rate Auction, either:
Appears in 1 contract