Borrowing Mechanics. (a) Subject to Section 1.03(b), Borrowings shall be made on notice from either Borrower to the Payments Administrator, given not later than 2:00 P.M. New York City time on the first Business Day prior to the date on which any proposed Borrowing consisting of Base Rate Loans is requested to be made and on the third Business Day prior to the date on which any proposed Borrowing consisting of Eurodollar Loans is requested to be made. (i) Each Notice of Borrowing shall be given by either telephone, telecopy, telex, facsimile or cable, and, if by telephone, confirmed in writing, substantially in the form of Exhibit A (the "Notice of Borrowing"). Each Notice of Borrowing shall (x) be irrevocable by and binding on the applicable Borrower and (y) be executed by an Authorized Officer who shall certify that, to the best of such officer's knowledge and without personal liability (a) the proposed extension of credit and its intended use are consistent with the terms of the DIP Credit Documents and the Budget and is necessary, after utilization and application of available cash, in order to satisfy the obligations of the Borrowers and the Subsidiary Guarantors in the ordinary course of business or as otherwise permitted under this Agreement, (b) unless the Borrowing is incurred in order to repay Unpaid Drawings pursuant to Section 2.04(a), the Borrowers and the Subsidiary Guarantors have observed or performed all of their covenants and other agreements and have satisfied in all material respects every condition contained in the DIP Credit Documents and the Orders (as applicable) to be observed, performed or satisfied by the Borrowers or such Subsidiary Guarantors and (c) such officer has no knowledge of any Default or Event of Default. (ii) The Borrowers shall provide the Payments Administrator with a specimen signature of each of the Authorized Officers, who shall be the sole Persons authorized to request Revolving Loans on behalf of the Borrowers. The Payments Administrator shall be entitled to rely conclusively on such Authorized Officers' authority to request Revolving Loans on behalf of the Borrowers until the Payments Administrator receives written notice to the contrary. The Payments Administrator shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing and, with respect to an oral request for Revolving Loans, the Payments Administrator, acting in good faith, shall have no duty to verify the identity of any individual representing himself as one of the Authorized Officers authorized to make such request on behalf of the applicable Borrower. Neither the Payments Administrator nor any of the Lenders shall incur any liability to the Borrowers as a result of acting upon any telephonic notice referred to in this Section 1.02(a) which notice the Payments Administrator believes in good faith to have been given by an Authorized Officer on behalf of the relevant Borrower or for otherwise acting reasonably and in good faith under this Section 1.02(a) and, upon the funding of Revolving Loans by the Lenders in accordance with this Agreement, pursuant to any such telephonic notice, the relevant Borrower shall be deemed to have made a Borrowing of Revolving Loans hereunder. (iii) In a Notice of Borrowing, each Borrower may request one or more Borrowings on a single day; provided that at no time shall there be outstanding more than five Borrowings of Eurodollar Loans. Each Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans of the same Type and shall be in an aggregate amount for all Lenders of not less than the Minimum Borrowing Amount, if applicable, for such Borrowing and if greater than the Minimum Borrowing Amount, such Borrowing shall be in an integral multiple of $1,000,000. Unless otherwise requested in the applicable Notice of Borrowing, all Revolving Loans shall be Base Rate Loans. The right of the Borrowers to choose Eurodollar Loans is subject to the provisions of Section 1.09. (b) The Lenders hereby authorize the Payments Administrator to make, and so long as the conditions to Borrowing in Section 5 of this Agreement remain satisfied, the Payments Administrator on behalf of the Lenders shall make, Revolving Loans to the Borrowers. If one of the Borrowers has provided a Notice of Borrowing pursuant to Section 1.02(a) then the Payments Administrator shall disburse such funds in the manner specified in the Notice of Borrowings delivered by the applicable Borrower.
Appears in 1 contract
Borrowing Mechanics. (a) Subject to Section 1.03(bExcept as provided in Sections 2.2(b), 2.3(b) and 4.8, Borrowings shall be made on notice from either Borrower the Funds Administrator to the Payments AdministratorAgent, given not later than 2:00 P.M. New York City time 12:00 noon on the first Business Day prior to the date on which any a proposed Borrowing consisting of Base Prime Rate Loans is requested to be made and on the third Business Day prior to the date on which of any proposed Borrowing consisting of Eurodollar LIBOR Rate Loans is requested to be made.
(i) Each Notice of Borrowing shall be given by either by, alternatively, telephone, telecopy, telex, facsimile or cableelectronic E-mail transmission, and, if by telephonetelephone or electronic E-mail transmission, confirmed in writing, substantially in the form of Exhibit A C (the "Notice of Borrowing"). Each Notice of Borrowing shall (x) be irrevocable by and binding on the applicable Borrower and (y) be executed by an Authorized Officer who shall certify that, to the best of such officer's knowledge and without personal liability (a) the proposed extension of credit and its intended use are consistent with the terms of the DIP Credit Documents Funds Administrator and the Budget and is necessary, after utilization and application of available cash, in order to satisfy the obligations of the Borrowers and the Subsidiary Guarantors in the ordinary course of business or as otherwise permitted under this Agreement, (b) unless the Borrowing is incurred in order to repay Unpaid Drawings pursuant to Section 2.04(a), the Borrowers and the Subsidiary Guarantors have observed or performed all of their covenants and other agreements and have satisfied in all material respects every condition contained in the DIP Credit Documents and the Orders (as applicable) to be observed, performed or satisfied by the Borrowers or such Subsidiary Guarantors and (c) such officer has no knowledge of any Default or Event of DefaultBorrowers.
(ii) The Funds Administrator shall notify the Agent in writing of the names of the employees of the Funds Administrator authorized to request Loans on behalf of the Borrowers and specifying which of those employees are also, or, if none are, the employees that are, authorized to direct the disbursement of Loans in a manner contrary to standing disbursement instructions, and shall provide the Payments Administrator Agent with a specimen signature of each such employee, it being understood that until further notice from the Funds Administrator, those employees authorized, respectively, to request Loans and direct the disbursement of Loans on the Authorized Officersdate hereof under the Original Credit Agreement continue to be so authorized. In the absence of a specification of those employees who are authorized to vary standing disbursement instructions, who shall be the sole Persons Agent may assume that each employee authorized to request Revolving Loans on behalf of the Borrowersalso has such authority. The Payments Administrator Agent shall be entitled to rely conclusively on the authority of such Authorized Officers' authority employees of the Funds Administrator to request Revolving Loans on behalf of the Borrowers Borrowers, or to vary standing disbursement instructions, until the Payments Administrator Agent receives written notice to the contrary. The Payments Administrator Agent shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing or other writing delivered pursuant to this Section 2.2(a) and, with respect to an oral or electronic E-mail request for Revolving Loans, the Payments Administrator, acting in good faith, Agent shall have no duty to verify the identity of any individual representing himself as one of the Authorized Officers employees of the Funds Administrator authorized to make such request on behalf of the applicable BorrowerBorrowers. Neither the Payments Administrator Agent nor any of the Lenders shall incur any liability to the Funds Administrator or any of the Borrowers as a result of (a) acting upon any telephonic or electronic E-mail notice referred to in this Section 1.02(a2.2(a) which notice if the Payments Administrator Agent believes in good faith such notice to have been given by an Authorized Officer a duly authorized employee of the Funds Administrator or other individual authorized to request Loans on behalf of the relevant Borrower Borrowers or for to direct the disbursement thereof in a manner contrary to standing disbursement instructions, or (b) otherwise acting reasonably and in good faith under this Section 1.02(a2.2(a) and, upon the funding of Revolving Loans by the Lenders in accordance with this Agreement, and an advance made and disbursed pursuant to any such telephonic notice, the relevant Borrower or electronic E-mail notice in accordance with this Credit Agreement shall be deemed to have made be a Borrowing Loan for all purposes of Revolving Loans hereunderthis Credit Agreement.
(iii) In a its Notice of Borrowing, each Borrower the Funds Administrator may request one or more Borrowings on a single day; provided that at no time shall there be outstanding more than five Borrowings of Eurodollar Loans. Each such Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans of the same Type and shall shall, in the case of a Borrowing of LIBOR Rate Loans, be in an aggregate amount for all Lenders of not less than the Minimum Borrowing Amount, if applicable, for such Borrowing and if greater than the Minimum Borrowing Amount, such Borrowing shall be in $2,000,000 or an integral multiple of $1,000,000. Unless otherwise requested 1,000,000 in the applicable Notice of Borrowing, all Revolving Loans shall be Base Rate Loansexcess thereof. The right of the Borrowers Funds Administrator to choose Eurodollar LIBOR Rate Loans is subject to the provisions of Section 1.094.3(c).
(bi) The In the event the Borrowers are unable to comply with (A) the Borrowing Base limitation set forth in clause (ii)(B) of the proviso to Section 2.1(a) or (B) the conditions precedent set forth in Section 5.2 to a Credit Event, the Lenders hereby authorize the Payments Administrator Agent, in its sole discretion, to make, and so long as the conditions to Borrowing in Section 5 of this Agreement remain satisfied, the Payments Administrator on behalf of the Lenders shall make, Revolving make Loans ("Interim Advances") to the Borrowers. If one of Borrowers during the Borrowers has provided period commencing on the date the Agent first receives a Notice of Borrowing pursuant requesting an Interim Advance until the earliest of (1) the twentieth (20th) Business Day after such date, (2) the date the Borrowers are again able to Section 1.02(acomply with such Borrowing Base limitation and conditions precedent, or obtains an amendment or waiver with respect thereto and (3) then the Payments Administrator date the Majority Lenders instruct the Agent, or the Agent determines, to cease making Interim Advances (in each case, the "Interim Advance Period").
(ii) The Agent shall disburse not, in any event, (A) make any Interim Advance during any Interim Advance Period if, after giving effect to such funds Interim Advance, Total Exposure would exceed one hundred ten percent (110%) of Total Exposure on the first day of such Interim Advance Period (calculated without giving effect to Interim Advances made on such day) and (B) make any Interim Advance if, after giving effect to such Interim Advance, Total Exposure would exceed the Line of Credit.
(iii) All amounts received by the Agent during an Interim Advance Period on account of the Obligations, whether in the manner specified form of payments from any Borrower, collections on the Collateral or otherwise, shall, so long as any Interim Advances made during such Interim Advance Period are outstanding, be applied by the Agent, first, to the repayment of such Interim Advances and, second , in accordance with Section 2.5(d).
(c) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
(d) In addition to being evidenced, as provided in Section 2.6, by the Borrowers' Account, each Lender's Loans and the Borrowers' joint and several obligations to repay such Loans with interest in accordance with the terms of this Credit Agreement shall be evidenced by this Credit Agreement, the records of such Lender and such Lender's Note. The Borrowers' Account and the Register shall be prima facie evidence of each Lender's Loans and accrued interest thereon and of all payments made in respect thereof.
(e) Each Lender shall be entitled to earn interest at the then applicable rate of interest, calculated in accordance with Article 4, on outstanding Loans which it has funded to the Agent; provided that in the case of interest accrued but unpaid at the time of a Bankruptcy Default and interest accruing thereafter and during a Bankruptcy Default, such Lender shall be entitled to receive only its Proportionate Share of amounts actually received by the Agent in respect of such interest; further provided that if any amount received by the Agent in respect of such interest and distributed by it is thereafter recovered from the Agent, such Lender shall, upon request, repay to the Agent its Proportionate Share of the amount so recovered to the extent received by it, but without interest (unless the Agent is required to pay interest on the amount recovered, in which case such Lender shall be required to pay interest at a like rate).
(f) Notwithstanding the obligation of the Funds Administrator to send written confirmation of a Notice of Borrowings delivered Borrowing made by the applicable BorrowerFunds Administrator by telephone or electronic E-mail transmission if and when requested by the Agent, in the event that the Agent agrees to accept a Notice of Borrowing made by the Funds Administrator by telephone or electronic E-mail transmission, such Notice of Borrowing shall be binding on the Funds Administrator and each Borrower whether or not written confirmation is sent by the Funds Administrator or requested by the Agent. The Agent may act prior to the receipt of any requested written confirmation, without any liability whatsoever, based upon telephonic or electronic E-mail notice believed by the Agent in good faith to be from the Funds Administrator or its agents. The Agent's records of the terms of any telephonic or electronic E-mail transmission Notices of Borrowing shall absent manifest error be conclusive on the Funds Administrator and each Borrower and Lender in the absence of gross negligence or willful misconduct on the part of the Agent in connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Bway Corp)
Borrowing Mechanics. (a) Subject to Except as provided in Section 1.03(b2.3(b) or (c), Borrowings shall be made on notice from either the Borrower to the Payments Administrator, given not later than 2:00 1:00 P.M. New York City time on the first Business Day prior to the date on which any the proposed Borrowing consisting of Base Rate Loans is requested to be made and on the third Business Day prior to the date on which any proposed Borrowing consisting of Eurodollar Rate Loans is requested to be made.
(i) Each Notice of Borrowing shall be given by either telephone, telecopy, telex, facsimile or cable, and, if by telephone, confirmed in writing, substantially in the form of Exhibit A B-1 (the "Notice of Borrowing"). Each Notice of Borrowing shall (x) be irrevocable by and binding on the applicable Borrower and (y) be executed by an Authorized Officer who shall certify that, to the best of such officer's knowledge and without personal liability (a) the proposed extension of credit and its intended use are consistent with the terms of the DIP Credit Documents and the Budget and is necessary, after utilization and application of available cash, in order to satisfy the obligations of the Borrowers and the Subsidiary Guarantors in the ordinary course of business or as otherwise permitted under this Agreement, (b) unless the Borrowing is incurred in order to repay Unpaid Drawings pursuant to Section 2.04(a), the Borrowers and the Subsidiary Guarantors have observed or performed all of their covenants and other agreements and have satisfied in all material respects every condition contained in the DIP Credit Documents and the Orders (as applicable) to be observed, performed or satisfied by the Borrowers or such Subsidiary Guarantors and (c) such officer has no knowledge of any Default or Event of DefaultBorrower.
(ii) The Borrowers Borrower shall notify the Payments Administrator in writing of the names of the officers authorized to request Revolving Loans on behalf of Borrower, and shall provide the Payments Administrator with a specimen signature of each of the Authorized Officers, who shall be the sole Persons authorized to request Revolving Loans on behalf of the Borrowerssuch officer. The Payments Administrator shall be entitled to rely conclusively on such Authorized Officersofficers' authority to request Revolving Loans on behalf of the Borrowers Borrower until the Payments Administrator receives written notice to the contrary. The Payments Administrator shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing or other writing delivered pursuant to this Section 2.3(a) and, with respect to an oral request for Revolving Loans, the Payments Administrator, acting in good faith, Administrator shall have no duty to verify the identity of any individual representing himself as one of the Authorized Officers officers authorized to make such request on behalf of the applicable Borrower. Neither the Payments Administrator nor any of the Lenders shall incur any liability to the Borrowers Borrower as a result of acting upon any telephonic notice referred to in this Section 1.02(a2.3(a) which notice the Payments Administrator believes in good faith to have been given by an Authorized Officer a duly authorized officer or other individual authorized to request Revolving Loans on behalf of the relevant Borrower or for otherwise acting reasonably and in good faith under this Section 1.02(a2.3(a) and, upon the funding of Revolving Loans by the Lenders in accordance with this Credit Agreement, pursuant to any such telephonic notice, the relevant Borrower shall be deemed to have made a Borrowing of Revolving Loans hereunder.
(iii) In a Notice of Borrowing, each the Borrower may request one or more Borrowings on a single day; provided that at no time shall there be outstanding more than five Borrowings of Eurodollar Loans. Each such Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans of the same Type and shall be in an aggregate amount for all Lenders of not less than $1,000,000 in the Minimum Borrowing Amount, if applicable, for such Borrowing and if greater than the Minimum Borrowing Amount, such Borrowing shall be in an integral multiple case of $1,000,000Eurodollar Rate Loans. Unless otherwise requested in the applicable Notice of Borrowing, all Revolving Loans shall be Base Rate Loans. The right of the Borrowers Borrower to choose Eurodollar Rate Loans is subject to the provisions of Section 1.092.3(a)(iv) and 4.3(c).
(iv) Notwithstanding the foregoing, the Borrower may not incur Eurodollar Rate Loans prior to the Syndication Date.
(b) The Borrower has informed the Agent that it has a checking account (the "Disbursement Account") with B of A for general corporate purposes, including the purpose of paying trade payables and other operating expenses. The Lenders hereby authorize the Payments Administrator to makeAdministrator, and so long as the conditions to for Borrowing in Section Article 5 of this Agreement remain satisfied, the Payments Administrator on behalf of the Lenders may but shall make, not be obligated to make Revolving Loans to cover the Borrowersamount of checks presented for payment and other disbursements from the Disbursement Account. If one Such Borrowings shall be of Base Rate Loans only and will at no time exceed the amount available for the Borrowing of Revolving Loans under Section 2.2 (as determined in good faith by the Agent). In the event that the Borrower provides the Agent with written notice that it has opened a checking account with Bankers Trust (Delaware) ("BT Delaware") and intends this account to replace the then existing Disbursement Account, then from and after the date set forth in such notice therefore the Disbursement Account shall be such account with BT Delaware and advice from BT Delaware of amounts required to cover amounts set forth in the second sentence of this clause (b) will be deemed a sufficient Notice of Borrowing.
(c) In the event the Borrower is unable to comply with (i) the Borrowing Base limitations set forth in Section 2.2(a) or (ii) the conditions precedent to the making of a Revolving Loan or the issuance of a Letter of Credit set forth in Section 5.2, the Lenders authorize the Payments Administrator, for the account of the Borrowers has provided Lenders, to make Revolving Loans (the "Agent Advances") to the Borrower for a period commencing on the date the Payments Administrator first receives a Notice of Borrowing pursuant requesting an Agent Advance until the earlier of (i) the fifteenth Business Day after such date, (ii) the date the Borrower is again able to Section 1.02(acomply with the Borrowing Base limitations and the conditions precedent to the making of Revolving Loans and issuance of Letters of Credit, or obtains an amendment or waiver with respect thereto, or (iii) then the date the Required Lenders instruct the Payments Administrator to cease making Agent Advances (in each case, the "Agent Advance Period"). The Payments Administrator shall disburse not make any Agent Advance to the extent that at such funds in time the manner specified in amount of such Agent Advance when added to the Notice aggregate outstanding amount of Borrowings delivered by other Agent Advances would exceed the applicable Borrowerlesser of (A) the remainder of (i) the Total Available Commitments at such time LESS (ii) the Outstandings at such time and (B) the lesser of (x) $20,000,000 or (y) 10% of the Outstandings at such time. Agent Advances will be subject to periodic settlement with the Lenders under Section 2.4.
Appears in 1 contract
Borrowing Mechanics. (a) Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of each Borrower herein set forth, each Lender hereby severally agrees to make the Loans described in Section 1.03(b)2.1.A., Borrowings shall be made on if, and only if, the borrowing mechanics set forth as follows are satisfied (or, if such borrowing mechanics are not followed, upon notice from either Borrower the Administrative Agent that a Revolving Loan is being made in order to reimburse the Payments Administrator, given not later than 2:00 P.M. New York City time Issuing Bank for a drawing on the first Business Day prior to the date on which any proposed Borrowing consisting a Letter of Base Rate Loans is requested to be made and on the third Business Day prior to the date on which any proposed Borrowing consisting of Eurodollar Loans is requested to be made.Credit):
(i) Each Notice of Borrowing shall be given by either telephone, telecopy, telex, facsimile or cable, and, if by telephone, confirmed in writing, substantially in the form of Exhibit A (the "Notice of Borrowing"). Each Notice of Borrowing shall (x) be irrevocable by and binding on the applicable Borrower and (y) be executed by an Authorized Officer who shall certify that, With respect to the best making of such officer's knowledge and without personal liability a Loan, each Loan/Letter of Credit Request shall (a) specify (1) the identity of the applicable Borrower, (2) the aggregate amount of the requested Loan, (3) the proposed extension Loan Date (which may occur only on a Business Day), and (4) the date and amount of credit and its intended use the Letter of Credit drawing and/or other Letter of Credit Obligations that are consistent to be reimbursed with the terms proceeds of the DIP Credit Documents and the Budget and is necessary, after utilization and application of available cash, in order to satisfy the obligations of the Borrowers and the Subsidiary Guarantors in the ordinary course of business or as otherwise permitted under this Agreement, (b) unless the Borrowing is incurred in order to repay Unpaid Drawings pursuant to Section 2.04(a), the Borrowers and the Subsidiary Guarantors have observed or performed all of their covenants and other agreements and have satisfied in all material respects every condition contained in the DIP Credit Documents and the Orders (as applicable) to be observed, performed or satisfied by the Borrowers or such Subsidiary Guarantors and (c) such officer has no knowledge of any Default or Event of Default.Revolving Loan;
(ii) With respect to the issuance of a Letter of Credit, each such issuance shall be made in accordance with the requirements set forth in Section 2.2.B; and
(iii) The Borrowers applicable Borrower shall provide notify the Payments Administrator with a specimen signature Administrative Agent prior to the making of each any Loan in the event that any of the Authorized Officersmatters to which such Borrower is required to certify in the applicable Loan/Letter of Credit Request or Loan/Letter of Credit Certificate, who shall be the sole Persons authorized to request Revolving Loans on behalf of the Borrowers. The Payments Administrator shall be entitled to rely conclusively on such Authorized Officers' authority to request Revolving Loans on behalf of the Borrowers until the Payments Administrator receives written notice to the contrary. The Payments Administrator shall have as applicable, is no duty to verify the authenticity of the signature appearing on any Notice of Borrowing and, with respect to an oral request for Revolving Loans, the Payments Administrator, acting in good faith, shall have no duty to verify the identity of any individual representing himself longer accurate and complete as one of the Authorized Officers authorized to make such request on behalf of the applicable Borrower. Neither Loan Date, and the Payments Administrator nor acceptance by any Borrower of the Lenders proceeds of any Loan shall incur any liability constitute a re-certification by the applicable Borrower, as of the applicable Loan Date, as to the Borrowers as a result matters to which such Borrower is required to certify in the applicable Loan/Letter of acting upon any telephonic notice referred to in this Credit Request and Loan/Letter of Credit Certificate.
(f) Section 1.02(a) which notice the Payments Administrator believes in good faith to have been given by an Authorized Officer on behalf 2.1.C. of the relevant Borrower or Credit Agreement is amended by (i) deleting the last sentence in the first paragraph thereof and substituting in lieu thereof the following: “The Administrative Agent shall disburse the proceeds of each Loan to the Issuing Bank to reimburse the Issuing Bank for otherwise acting reasonably and in good faith under this Section 1.02(a) andthe Letter of Credit Obligations that are being reimbursed with the proceeds of such Loan (or, upon if the funding Lenders have previously reimbursed the Issuing Bank for such Letter of Revolving Loans by Credit Obligations, to the Lenders in accordance with the amounts in which they reimbursed the Issuing Bank)”; and (ii) deleting each reference to the phrase “rate payable under this AgreementAgreement for Base Rate Loans” and substituting in lieu thereof the phrase: “Applicable Interest Rate”.
(g) Section 2.2.A of the Credit Agreement is hereby amended by deleting the amount “6,081,744.27” and substituting in lieu thereof the amount “$5,595,204.73”.
(h) Section 2.2.C of the Credit Agreement is hereby amended by deleting the last sentence therein in its entirety and substituting in lieu thereof the following new sentence: “For the avoidance of doubt, pursuant to any such telephonic noticeeach Lender hereby acknowledges and agrees that, in respect of all Letters of Credit outstanding as of the relevant Borrower Eighteenth Amendment Effective Date and all Letters of Credit issued on and after the Eighteenth Amendment Effective Date, (i) each Lender shall be deemed to have made purchased without recourse a Borrowing participation interest from the Issuing Bank in such Letter of Revolving Loans hereunderCredit and (ii) the obligations arising thereunder shall be equal to such Lender’s LOC Pro Rata Share as set forth opposite such Lender’s name on Schedule 2.1.A annexed hereto.”
(i) Section 2.2.D of the Credit Agreement is amended by deleting each reference to “interest rate otherwise payable under this Agreement for Base Rate Loans” and substituting in lieu thereof: “Applicable Interest Rate”.
(iiij) In a Notice of Borrowing, each Borrower may request one or more Borrowings on a single day; provided that at no time shall there be outstanding more than five Borrowings of Eurodollar Loans. Each Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans Section 2.2.E of the same Type Credit Agreement is hereby amended by deleting such Section in its entirety and shall be substituting in an aggregate amount for all Lenders of not less than lieu thereof the Minimum Borrowing Amount, if applicable, for such Borrowing and if greater than the Minimum Borrowing Amount, such Borrowing shall be in an integral multiple of $1,000,000. Unless otherwise requested in the applicable Notice of Borrowing, all Revolving Loans shall be Base Rate Loans. The right of the Borrowers to choose Eurodollar Loans is subject to the provisions of following new Section 1.09.
(b) The Lenders hereby authorize the Payments Administrator to make, and so long as the conditions to Borrowing in Section 5 of this Agreement remain satisfied, the Payments Administrator on behalf of the Lenders shall make, Revolving Loans to the Borrowers. If one of the Borrowers has provided a Notice of Borrowing pursuant to Section 1.02(a) then the Payments Administrator shall disburse such funds in the manner specified in the Notice of Borrowings delivered by the applicable Borrower.2.2.E:
Appears in 1 contract
Samples: Amended and Restated Credit Agreement (Fibernet Telecom Group Inc\)
Borrowing Mechanics. (a) Subject to Section 1.03(bExcept as provided in Sections 2.2(b), 2.3(b) and 3.5(a), Borrowings shall be made on notice from either Borrower to the Payments AdministratorAgent, given not later than 2:00 P.M. New York City time 11:00 A.M. on the first Business Day prior to the date on which any a proposed Borrowing consisting of Base Prime Rate Loans is requested to be made and on the third Business Day prior to the date on which of any proposed Borrowing consisting of Eurodollar LIBOR Rate Loans is requested to be made.
(i) Each Notice of Borrowing shall be given by either by, alternatively, telephone, telecopy, telex, facsimile or cableelectronic E-mail transmission, and, if by telephonetelephone or electronic E-mail transmission, confirmed in writing, substantially in the form of Exhibit A EXHIBIT C (the "Notice of BorrowingNOTICE OF BORROWING"). Each Notice of Borrowing shall (x) be irrevocable by and binding on the applicable Borrower and (y) be executed by an Authorized Officer who shall certify that, to the best of such officer's knowledge and without personal liability (a) the proposed extension of credit and its intended use are consistent with the terms of the DIP Credit Documents and the Budget and is necessary, after utilization and application of available cash, in order to satisfy the obligations of the Borrowers and the Subsidiary Guarantors in the ordinary course of business or as otherwise permitted under this Agreement, (b) unless the Borrowing is incurred in order to repay Unpaid Drawings pursuant to Section 2.04(a), the Borrowers and the Subsidiary Guarantors have observed or performed all of their covenants and other agreements and have satisfied in all material respects every condition contained in the DIP Credit Documents and the Orders (as applicable) to be observed, performed or satisfied by the Borrowers or such Subsidiary Guarantors and (c) such officer has no knowledge of any Default or Event of DefaultBorrower.
(ii) The Borrowers Borrower shall notify Agent in writing of the names of the officers of Borrower authorized to request Loans on behalf of Borrower and specifying which of those officers are also, or, if none are, the officers that are, authorized to direct the disbursement of Loans in a manner contrary to standing disbursement instructions, and shall provide the Payments Administrator Agent with a specimen signature of each such officer. In the absence of the Authorized Officersa specification of those officers who are authorized to vary standing disbursement instructions, who shall be the sole Persons Agent may assume that each officer authorized to request Revolving Loans on behalf of the Borrowersalso has such authority. The Payments Administrator Agent shall be entitled to rely conclusively on the authority of such Authorized Officersofficers' authority of Borrower to request Revolving Loans on behalf of the Borrowers Borrower, or to vary standing disbursement instructions, until the Payments Administrator Agent receives written notice to the contrary. The Payments Administrator Agent shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing or other writing delivered pursuant to this Section 2.2(a) and, with respect to an oral or electronic E-mail request for Revolving Loans, the Payments Administrator, acting in good faith, Agent shall have no duty to verify the identity of any individual representing himself as one of the Authorized Officers officers of Borrower authorized to make such request on behalf of the applicable Borrower. Neither the Payments Administrator Agent nor any of the Lenders shall incur any liability to the Borrowers Borrower as a result of (a) acting upon any telephonic or electronic E-mail notice referred to in this Section 1.02(a2.2(a) which notice the Payments Administrator if Agent believes in good faith such notice to have been given by an Authorized Officer a duly authorized officer of Borrower or other individual authorized to request Loans on behalf of the relevant Borrower or for to direct the disbursement thereof in a manner contrary to standing disbursement instructions, or (b) otherwise acting reasonably and in good faith under this Section 1.02(a2.2(a) and, upon the funding of Revolving Loans by the Lenders in accordance with this Agreement, and an advance made and disbursed pursuant to any such telephonic notice, the relevant Borrower or electronic E-mail notice shall be deemed to have made be a Borrowing Loan for all purposes of Revolving Loans hereunderthis Credit Agreement.
(iii) In a its Notice of Borrowing, each Borrower may request one or more Borrowings on a single day; provided that at no time shall there be outstanding more than five Borrowings of Eurodollar Loans. Each such Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans of the same Type and shall shall, in the case of a Borrowing of LIBOR Rate Loans, be in an aggregate amount for all Lenders of not less than the Minimum Borrowing Amount, if applicable, for such Borrowing and if greater than the Minimum Borrowing Amount, such Borrowing shall be in $3,000,000 or an integral multiple of $1,000,000. Unless otherwise requested 1,000,000 in the applicable Notice of Borrowing, all Revolving Loans shall be Base Rate Loansexcess thereof. The right of the Borrowers Borrower to choose Eurodollar LIBOR Rate Loans is subject to the provisions of Section 1.094.3(c).
(bi) The Lenders hereby authorize In the Payments Administrator event Borrower is unable to make, and so long as comply with (A) the Borrowing Base limitation set forth in clause (ii)(B) of the PROVISO to Section 2.1(a) or (B) the conditions to Borrowing precedent set forth in Section 5 of this Agreement remain satisfied5.2 to a Credit Event, the Payments Administrator Lenders authorize Agent, in its sole discretion, to make Loans ("INTERIM ADVANCES") to Borrower during the period commencing on behalf of the Lenders shall make, Revolving Loans to the Borrowers. If one of the Borrowers has provided date Agent first receives a Notice of Borrowing pursuant requesting an Interim Advance until the earliest of (1) the twentieth (20th) Business Day after such date, (2) the date Borrower is again able to Section 1.02(acomply with such Borrowing Base limitation and conditions precedent, or obtains an amendment or waiver with respect thereto and (3) then the Payments Administrator date the Majority Lenders instruct Agent, or Agent determines, to cease making Interim Advances (in each case, the "INTERIM ADVANCE PERIOD").
(ii) Agent shall disburse not, in any event, (A) make any Interim Advance during any Interim Advance Period if, after giving effect to such funds Interim Advance, Total Exposure would exceed one hundred ten percent (110%) of Total Exposure on the first day of such Interim Advance Period (calculated without giving effect to Interim Advances made on such day) and (B) make any Interim Advance if, after giving effect to such Interim Advance, Total Exposure would exceed the Line of Credit.
(iii) All amounts received by Agent during an Interim Advance Period on account of the Obligations, whether in the manner specified form of payments from Borrower, collections on the Collateral or otherwise, shall, so long as any Interim Advances made during such Interim Advance Period are outstanding, be applied by Agent, FIRST, to the repayment of such Interim Advances and, SECOND, in accordance with Section 2.5(c).
(c) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
(d) In addition to being evidenced, as provided in Section 2.6, by Borrower's Account, each Lender's Loans and Borrower's obligations to repay such Loans with interest in accordance with the terms of this Credit Agreement shall be evidenced by this Credit Agreement, the records of such Lender and such Lender's Note. The records of each Lender shall be PRIMA FACIE evidence of such Lender's Loans and accrued interest thereon and of all payments made in respect thereof.
(e) Each Lender shall be entitled to earn interest at the then applicable rate of interest, calculated in accordance with Article 4, on outstanding Loans which it has funded to Agent; PROVIDED that in the case of interest accrued but unpaid at the time of a Bankruptcy Default and interest accruing thereafter and during a Bankruptcy Default, such Lender shall be entitled to receive only its Proportionate Share of amounts actually received by Agent in respect of such interest; FURTHER PROVIDED that if any amount received by Agent in respect of such interest and distributed by it is thereafter recovered from Agent, such Lender shall, upon request, repay to Agent its Proportionate Share of the amount so recovered to the extent received by it, but without interest (unless Agent is required to pay interest on the amount recovered, in which case such Lender shall be required to pay interest at a like rate).
(f) Notwithstanding the obligation of Borrower to send written confirmation of a Notice of Borrowings delivered Borrowing made by telephone or electronic E-mail transmission if and when requested by Agent, in the applicable Borrowerevent that Agent agrees to accept a Notice of Borrowing made by telephone or electronic E-mail transmission, such Notice of Borrowing shall be binding on Borrower whether or not written confirmation is sent by Borrower or requested by Agent. Agent may act prior to the receipt of any requested written confirmation, without any liability whatsoever, based upon telephonic or electronic E-mail notice believed by Agent in good faith to be from Borrower or its agents. Agent's records of the terms of any telephonic or electronic E-mail transmission Notices of Borrowing shall be conclusive on Borrower and the Lenders in the absence of gross negligence or willful misconduct on the part of Agent in connection therewith.
Appears in 1 contract
Borrowing Mechanics. (a) Subject to Section 1.03(bBorrower Representative shall give the Lender prior telephonic notice (immediately confirmed in writing, in substantially the form of Exhibit B hereto (each a “Notice of Borrowing”), Borrowings shall be made on notice from either Borrower to the Payments Administrator, given not later than 2:00 P.M. New York City time 10:00 a.m. (Chicago time) on the first Business Day prior date of borrowing of an Advance; provided, that, notwithstanding anything to the date on which contrary set forth herein, except as otherwise previously agreed to by the Lender, Borrower Representative shall not submit a Notice of Borrowing and the Lender shall not be required to make any proposed Borrowing consisting of Base Rate Loans is requested to be made and on the third Business Day prior to the date on which Advance more than once in any proposed Borrowing consisting of Eurodollar Loans is requested to be made.
(i) week. Each Notice of Borrowing shall be given by either telephoneirrevocable and shall specify (i) the principal amount of the proposed Advance, telecopy, telex, facsimile or cable, and, if by telephone, confirmed in writing, substantially in the form of Exhibit A (the "Notice of Borrowing"). Each Notice of Borrowing shall (x) be irrevocable by and binding on the applicable Borrower and (y) be executed by an Authorized Officer who shall certify that, to the best of such officer's knowledge and without personal liability (aii) the proposed extension of credit and its intended use are consistent with the terms of the DIP Credit Documents and the Budget and is necessaryborrowing date, after utilization and application of available cash, in order to satisfy the obligations of the Borrowers and the Subsidiary Guarantors in the ordinary course of business or as otherwise permitted under this Agreement, which must be a Business Day.
(b) unless Borrower Representative shall notify the Borrowing is incurred Lender in order writing of the names of the Officers of Borrower Representative authorized to repay Unpaid Drawings pursuant to Section 2.04(a)request Advances on behalf of Borrowers and specifying which of those Officers are also, or, if none are, the Borrowers Officers that are, authorized to direct the disbursement of Advances in a manner contrary to standing disbursement instructions, and the Subsidiary Guarantors have observed or performed all of their covenants and other agreements and have satisfied in all material respects every condition contained in the DIP Credit Documents and the Orders (as applicable) to be observed, performed or satisfied by the Borrowers or such Subsidiary Guarantors and (c) such officer has no knowledge of any Default or Event of Default.
(ii) The Borrowers shall provide the Payments Administrator Lender with a specimen signature of each such Officer. In the absence of a specification of those Officers who are authorized to vary standing disbursement instructions, the Authorized Officers, who shall be the sole Persons Lender may assume that each Officer authorized to request Revolving Loans on behalf of the BorrowersAdvances also has such authority. The Payments Administrator Lender shall be entitled to rely conclusively on the authority of such Authorized Officers' authority Officers of the Borrower Representative to request Revolving Loans Advances on behalf of the Borrowers Borrowers, or to vary standing disbursement instructions, until the Payments Administrator Lender receives written notice to the contrary. The Payments Administrator Lender shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing or other writing delivered pursuant to this Section 2.2 and, with respect to an oral or electronic mail request for Revolving LoansAdvances, the Payments Administrator, acting in good faith, Lender shall have no duty to verify the identity of any individual representing himself as one of the Authorized Officers officers of Borrower Representative authorized to make such request on behalf of the applicable BorrowerBorrowers. Neither the Payments Administrator nor any of the Lenders The Lender shall not incur any liability to the Borrowers any Credit Party as a result of (i) acting upon any telephonic or electronic mail notice referred to in this Section 1.02(a) which notice 2.2 if the Payments Administrator Lender believes in good faith such notice to have been given by an Authorized a duly authorized Officer of Borrower Representative or other individual authorized to request Advances on behalf of Borrowers or to direct the relevant Borrower disbursement thereof in a manner contrary to standing disbursement instructions, or for (ii) otherwise acting reasonably and in good faith under this Section 1.02(a) and, upon the funding of Revolving Loans by the Lenders 2.2 and an advance made and disbursed pursuant to and in accordance with this Agreement, pursuant to any such telephonic notice, the relevant Borrower or electronic mail notice shall be deemed to have made be a Borrowing Advance for all purposes of Revolving Loans hereunderthis Agreement.
(iiic) In a Notice addition to being evidenced by the Revolving Loan Note and, as provided in Section 2.5(b), by Borrowers’ Account, the Advances and Borrowers’ joint and several obligations to repay the Advances with interest in accordance with the terms of Borrowing, each Borrower may request one or more Borrowings on a single day; provided that at no time this Agreement shall there be outstanding more than five Borrowings of Eurodollar Loans. Each Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans evidenced by this Agreement and the records of the same Type and Lender. The records of the Lender shall be in an aggregate amount for all Lenders of not less than the Minimum Borrowing Amount, if applicable, for such Borrowing and if greater than the Minimum Borrowing Amount, such Borrowing shall be in an integral multiple of $1,000,000. Unless otherwise requested in the applicable Notice of Borrowing, all Revolving Loans shall be Base Rate Loans. The right prima facie evidence of the Borrowers to choose Eurodollar Loans is subject to the provisions Advances and accrued interest thereon and of Section 1.09all payments made in respect thereof.
(bd) The Lenders hereby authorize Notwithstanding the Payments Administrator obligation of Borrower Representative to make, and so long as the conditions to Borrowing in Section 5 send written confirmation of this Agreement remain satisfied, the Payments Administrator on behalf of the Lenders shall make, Revolving Loans to the Borrowers. If one of the Borrowers has provided a Notice of Borrowing pursuant to Section 1.02(a) then made by telephone or electronic mail transmission if and when requested by the Payments Administrator shall disburse such funds Lender, in the manner specified event that the Lender agrees to accept a Notice of Borrowing made by telephone or electronic mail transmission, such Notice of Borrowing shall be binding on Borrowers whether or not written confirmation is sent by Borrower Representative or requested by the Lender. The Lender may act prior to the receipt of any requested written confirmation, without any liability whatsoever, based upon telephonic or electronic mail notice believed by the Lender in good faith to be from Borrower Representative, any Borrower or any of their respective agents. The Lender’s records of the terms of any telephonic or electronic mail transmission Notices of Borrowing shall be conclusive on Borrowers in the Notice absence of Borrowings delivered by gross negligence or willful misconduct on the applicable Borrowerpart of the Lender in connection therewith.
Appears in 1 contract
Borrowing Mechanics. (a) Subject to Except as provided in Section 1.03(b2.3(b), Borrowings shall be made on notice from either the Borrower to the Payments Administrator, given not later than 2:00 1:00 P.M. New York City time on the first Business Day prior to the date on which any the proposed Borrowing consisting of Base Rate Loans is requested to be made and on the third Business Day prior to the date on which any proposed Borrowing consisting of Eurodollar Rate Loans is requested to be made.
(i) Each Notice of Borrowing shall be given by either telephone, telecopy, telex, facsimile or cable, and, if by telephone, confirmed in writing, substantially in the form of Exhibit A B-1 (the "Notice of Borrowing"). Each Notice of Borrowing shall (x) be irrevocable by and binding on the applicable Borrower and (y) be executed by an Authorized Officer who shall certify that, to the best of such officer's knowledge and without personal liability (a) the proposed extension of credit and its intended use are consistent with the terms of the DIP Credit Documents and the Budget and is necessary, after utilization and application of available cash, in order to satisfy the obligations of the Borrowers and the Subsidiary Guarantors in the ordinary course of business or as otherwise permitted under this Agreement, (b) unless the Borrowing is incurred in order to repay Unpaid Drawings pursuant to Section 2.04(a), the Borrowers and the Subsidiary Guarantors have observed or performed all of their covenants and other agreements and have satisfied in all material respects every condition contained in the DIP Credit Documents and the Orders (as applicable) to be observed, performed or satisfied by the Borrowers or such Subsidiary Guarantors and (c) such officer has no knowledge of any Default or Event of DefaultBorrower.
(ii) The Borrowers Borrower shall notify the Payments Administrator in writing of the names of the officers authorized to request Revolving Loans on behalf of Borrower, and shall provide the Payments Administrator with a specimen signature of each of the Authorized Officers, who shall be the sole Persons authorized to request Revolving Loans on behalf of the Borrowerssuch officer. The Payments Administrator shall be entitled to rely conclusively on such Authorized Officersofficers' authority to request Revolving Loans on behalf of the Borrowers Borrower until the Payments Administrator receives written notice to the contrary. The Payments Administrator shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing or other writing delivered pursuant to this Section 2.3(a) and, with respect to an oral request for Revolving Loans, the Payments Administrator, acting in good faith, Administrator shall have no duty to verify the identity of any individual representing himself as one of the Authorized Officers officers authorized to make such request on behalf of the applicable Borrower. Neither the Payments Administrator nor any of the Lenders shall incur any liability to the Borrowers Borrower as a result of acting upon any telephonic notice referred to in this Section 1.02(a2.3(a) which notice the Payments Administrator believes in good faith to have been given by an Authorized Officer a duly authorized officer or other individual authorized to request Revolving Loans on behalf of the relevant Borrower or for otherwise acting reasonably and in good faith under this Section 1.02(a2.3(a) and, upon the funding of Revolving Loans by the Lenders in accordance with this Credit Agreement, pursuant to any such telephonic notice, the relevant Borrower shall be deemed to have made a Borrowing of Revolving Loans hereunder.
(iii) In a Notice of Borrowing, each the Borrower may request one or more Borrowings on a single day; provided that at no time shall there be outstanding more than five Borrowings of Eurodollar Loans. Each such Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans of the same Type and shall be in an aggregate amount for all Lenders of not less than $1,000,000 in the Minimum Borrowing Amount, if applicable, for such Borrowing and if greater than case of Eurodollar Rate Loans or $500,000 in the Minimum Borrowing Amount, such Borrowing shall be in an integral multiple case of $1,000,000Base Rate Loans. Unless otherwise requested in the applicable Notice of Borrowing, all Revolving Loans shall be Base Rate Loans. The right of the Borrowers Borrower to choose Eurodollar Rate Loans is subject to the provisions of Section 1.094.3(c).
(iv) Notwithstanding the foregoing, the Borrower may not incur Eurodollar Rate Loans prior to the Syndication Date, except that the Borrower may incur (to the extent it has not elected to Convert Base Rate Loans into such Eurodollar Rate Loans) one Borrowing of Eurodollar Rate Loans with one month Interest Period on or prior to the fifth day following the Closing Date.
(b) The Borrower has informed the Agent that it has decided to open a checking account (the "Disbursement Account") with Bankers Trust (Delaware) ("BT Delaware") for general corporate purposes, including the purpose of paying trade payables and other operating expenses. The Lenders hereby authorize the Payments Administrator to makeAdministrator, and so long as the conditions to for Borrowing in Section Article 5 of this Agreement remain satisfied, the Payments Administrator on behalf of the Lenders may but shall make, not be obligated to make Revolving Loans to cover the Borrowersamount of checks presented for payment and other disbursements from the Disbursement Account. If one Advice from BT Delaware of amounts required to cover such amounts will be deemed a sufficient Notice of Borrowing. Such Borrowings shall be of Base Rate Loans only and will not be subject to the minimum amount requirement of Section 2.3(a)(iii).
(c) In the event the Borrower is unable to comply with (i) the Borrowing Base limitations set forth in Section 2.2(a) or the Inventory Sublimit or (ii) the conditions precedent to the making of a Revolving Loan or the issuance of a Letter of Credit set forth in Section 5.2, the Lenders authorize the Payments Administrator, for the account of the Borrowers has provided Lenders, to make Agent Advances to the Borrower for a period commencing on the date the Payments Administrator first receives a Notice of Borrowing pursuant requesting an Agent Advance until the earlier of (i) the fifteenth Business Day after such date, (ii) the date the Borrower is again able to Section 1.02(acomply with the Borrowing Base limitations, the Inventory Sublimit, and the conditions precedent to the making of Revolving Loans and issuance of Letters of Credit, or obtains an amendment or waiver with respect thereto, or (iii) then the date the Required Lenders instruct the Payments Administrator to cease making Agent Advances (in each case, the "Agent Advance Period"). The Payments Administrator shall disburse not make any Agent Advance to the extent that at such funds in time the manner specified in amount of such Agent Advance when added to the Notice aggregate outstanding amount of Borrowings delivered by other Agent Advances would exceed the applicable Borrowerlesser of (A) the remainder of (i) the Total Commitments at such time less (ii) the Outstandings at such time and (B) the lesser of (x) $10,000,000 or (y) 10% of the Outstandings at such time.
Appears in 1 contract
Samples: Credit Agreement (Consumers Us Inc)
Borrowing Mechanics. (a) Subject to Section 1.03(bExcept as provided in Sections 2.2(b), 2.3(b) and 3.5(a), Borrowings shall be made on notice from either Borrower the Funds Administrator to the Payments AdministratorAgent, given not later than 2:00 P.M. New York City time 12:00 noon on the first Business Day prior to the date on which any a proposed Borrowing consisting of Base Prime Rate Loans is requested to be made and on the third Business Day prior to the date on which of any proposed Borrowing consisting of Eurodollar LIBOR Rate Loans is requested to be made.
(i) Each Notice of Borrowing shall be given by either by, alternatively, telephone, telecopy, telex, facsimile or cableelectronic E-mail transmission, and, if by telephonetelephone or electronic E-mail transmission, confirmed in writing, substantially in the form of Exhibit A C (the "Notice of Borrowing"). Each Notice of Borrowing shall (x) be irrevocable by and binding on the applicable Borrower and (y) be executed by an Authorized Officer who shall certify that, to the best of such officer's knowledge and without personal liability (a) the proposed extension of credit and its intended use are consistent with the terms of the DIP Credit Documents Funds Administrator and the Budget and is necessary, after utilization and application of available cash, in order to satisfy the obligations of the Borrowers and the Subsidiary Guarantors in the ordinary course of business or as otherwise permitted under this Agreement, (b) unless the Borrowing is incurred in order to repay Unpaid Drawings pursuant to Section 2.04(a), the Borrowers and the Subsidiary Guarantors have observed or performed all of their covenants and other agreements and have satisfied in all material respects every condition contained in the DIP Credit Documents and the Orders (as applicable) to be observed, performed or satisfied by the Borrowers or such Subsidiary Guarantors and (c) such officer has no knowledge of any Default or Event of DefaultBorrowers.
(ii) The Funds Administrator shall notify the Agent in writing of the names of the employees of the Funds Administrator authorized to request Loans on behalf of the Borrowers and specifying which of those employees are also, or, if none are, the employees that are, authorized to direct the disbursement of Loans in a manner contrary to standing disbursement instructions, and shall provide the Payments Administrator Agent with a specimen signature of each such employee. In the absence of a specification of those employees who are authorized to vary standing disbursement instructions, the Authorized Officers, who shall be the sole Persons Agent may assume that each employee authorized to request Revolving Loans on behalf of the Borrowersalso has such authority. The Payments Administrator Agent shall be entitled to rely conclusively on the authority of such Authorized Officers' authority employees of the Funds Administrator to request Revolving Loans on behalf of the Borrowers Borrowers, or to vary standing disbursement instructions, until the Payments Administrator Agent receives written notice to the contrary. The Payments Administrator Agent shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing or other writing delivered pursuant to this Section 2.2(a) and, with respect to an oral or electronic E-mail request for Revolving Loans, the Payments Administrator, acting in good faith, Agent shall have no duty to verify the identity of any individual representing himself as one of the Authorized Officers employees of the Funds Administrator authorized to make such request on behalf of the applicable BorrowerBorrowers. Neither the Payments Administrator Agent nor any of the Lenders shall incur any liability to the Funds Administrator or any of the Borrowers as a result of (a) acting upon any telephonic or electronic E-mail notice referred to in this Section 1.02(a2.2(a) which notice if the Payments Administrator Agent believes in good faith such notice to have been given by an Authorized Officer a duly authorized employee of the Funds Administrator or other individual authorized to request Loans on behalf of the relevant Borrower Borrowers or for to direct the disbursement thereof in a manner contrary to standing disbursement instructions, or (b) otherwise acting reasonably and in good faith under this Section 1.02(a2.2(a) and, upon the funding of Revolving Loans by the Lenders in accordance with this Agreement, and an advance made and disbursed pursuant to any such telephonic notice, the relevant Borrower or electronic E-mail notice shall be deemed to have made be a Borrowing Loan for all purposes of Revolving Loans hereunderthis Credit Agreement.
(iii) In a its Notice of Borrowing, each Borrower the Funds Administrator may request one or more Borrowings on a single day; provided that at no time shall there be outstanding more than five Borrowings of Eurodollar Loans. Each such Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans of the same Type and shall shall, in the case of a Borrowing of LIBOR Rate Loans, be in an aggregate amount for all Lenders of not less than the Minimum Borrowing Amount, if applicable, for such Borrowing and if greater than the Minimum Borrowing Amount, such Borrowing shall be in $5,000,000 or an integral multiple of $1,000,000. Unless otherwise requested 1,000,000 in the applicable Notice of Borrowing, all Revolving Loans shall be Base Rate Loansexcess thereof. The right of the Borrowers Funds Administrator to choose Eurodollar LIBOR Rate Loans is subject to the provisions of Section 1.094.3(c).
(bi) The In the event the Borrowers are unable to comply with (A) the Borrowing Base limitation set forth in clause (ii)(B) of the proviso to Section ------- 2.1(a) or (B) the conditions precedent set forth in Section 5.2 to a Credit Event, the Lenders hereby authorize the Payments Administrator Agent, in its sole discretion, to make, and so long as the conditions to Borrowing in Section 5 of this Agreement remain satisfied, the Payments Administrator on behalf of the Lenders shall make, Revolving make Loans ("Interim Advances") to the Borrowers. If one of Borrowers during the Borrowers has provided period commencing on the date the Agent first receives a Notice of Borrowing pursuant requesting an Interim Advance until the earliest of (1) the twentieth (20/th/) Business Day after such date, (2) the date the Borrowers are again able to Section 1.02(acomply with such Borrowing Base limitation and conditions precedent, or obtains an amendment or waiver with respect thereto and (3) then the Payments Administrator date the Majority Lenders instruct the Agent, or the Agent determines, to cease making Interim Advances (in each case, the "Interim Advance Period").
(ii) The Agent shall disburse not, in any event, (A) make any Interim Advance during any Interim Advance Period if, after giving effect to such funds Interim Advance, Total Exposure would exceed one hundred ten percent (110%) of Total Exposure on the first day of such Interim Advance Period (calculated without ----- giving effect to Interim Advances made on such day) and (B) make any Interim Advance if, after giving effect to such Interim Advance, Total Exposure would exceed the Line of Credit.
(iii) All amounts received by the Agent during an Interim Advance Period on account of the Obligations, whether in the manner specified form of payments from any Borrower, collections on the Collateral or otherwise, shall, so long as any Interim Advances made during such Interim Advance Period are outstanding, be applied by the Agent, first, to the repayment of such Interim Advances and, ----- second , in accordance with Section 2.5(d). ------
(c) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
(d) In addition to being evidenced, as provided in Section 2.6, by the Borrowers' Account, each Lender's Loans and the Borrowers' joint and several obligations to repay such Loans with interest in accordance with the terms of this Credit Agreement shall be evidenced by this Credit Agreement, the records of such Lender and such Lender's Note. The records of each Lender shall be prima facie evidence of such Lender's Loans and accrued interest thereon and of all payments made in respect thereof.
(e) Each Lender shall be entitled to earn interest at the then applicable rate of interest, calculated in accordance with Article 4, on outstanding Loans which it has funded to the Agent; provided that in the case of interest accrued but unpaid at the time of a Bankruptcy Default and interest accruing thereafter and during a Bankruptcy Default, such Lender shall be entitled to receive only its Proportionate Share of amounts actually received by the Agent in respect of such interest; further provided that if any amount received by the Agent in respect of such interest and distributed by it is thereafter recovered from the Agent, such Lender shall, upon request, repay to the Agent its Proportionate Share of the amount so recovered to the extent received by it, but without interest (unless the Agent is required to pay interest on the amount recovered, in which case such Lender shall be required to pay interest at a like rate).
(f) Notwithstanding the obligation of the Funds Administrator to send written confirmation of a Notice of Borrowings delivered Borrowing made by the applicable BorrowerFunds Administrator by telephone or electronic E-mail transmission if and when requested by the Agent, in the event that the Agent agrees to accept a Notice of Borrowing made by the Funds Administrator by telephone or electronic E-mail transmission, such Notice of Borrowing shall be binding on the Funds Administrator and each Borrower whether or not written confirmation is sent by the Funds Administrator or requested by the Agent. The Agent may act prior to the receipt of any requested written confirmation, without any liability whatsoever, based upon telephonic or electronic E-mail notice believed by the Agent in good faith to be from The Funds Administrator or its agents. The Agent's records of the terms of any telephonic or electronic E-mail transmission Notices of Borrowing shall be conclusive on the Funds Administrator and each Borrower and Lender in the absence of gross negligence or willful misconduct on the part of the Agent in connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Bway Corp)
Borrowing Mechanics. (a) Subject to Except as provided in Section 1.03(b2.3(b), ------------------- Borrowings shall be made on notice from either the Borrower to the Payments Administrator, given not later than 2:00 1:00 P.M. New York City time on the first Business Day prior to the date on which any the proposed Borrowing consisting of Base Rate Loans is requested to be made and on the third Business Day prior to the date on which any proposed Borrowing consisting of Eurodollar Rate Loans is requested to be made.
(i) Each Notice of Borrowing shall be given by either telephone, telecopy, telex, facsimile or cable, and, if by telephone, confirmed in writing, substantially in the form of Exhibit A D (the "Notice of Borrowing"). Each Notice of Borrowing shall (x) be irrevocable by and binding on the applicable Borrower and (y) be executed by an Authorized Officer who shall certify that, to the best of such officer's knowledge and without personal liability (a) the proposed extension of credit and its intended use are consistent with the terms of the DIP Credit Documents and the Budget and is necessary, after utilization and application of available cash, in order to satisfy the obligations of the Borrowers and the Subsidiary Guarantors in the ordinary course of business or as otherwise permitted under this Agreement, (b) unless the Borrowing is incurred in order to repay Unpaid Drawings pursuant to Section 2.04(a), the Borrowers and the Subsidiary Guarantors have observed or performed all of their covenants and other agreements and have satisfied in all material respects every condition contained in the DIP Credit Documents and the Orders (as applicable) to be observed, performed or satisfied by the Borrowers or such Subsidiary Guarantors and (c) such officer has no knowledge of any Default or Event of DefaultBorrower.
(ii) The Borrowers Borrower shall notify the Payments Administrator in writing of the names of the officers authorized to request Revolving Loans on behalf of the Borrower, and shall provide the Payments Administrator with a specimen signature of each of the Authorized Officers, who shall be the sole Persons authorized to request Revolving Loans on behalf of the Borrowerssuch officer. The Payments Administrator shall be entitled to rely conclusively on such Authorized Officersofficers' authority to request Revolving Loans on behalf of the Borrowers Borrower until the Payments Administrator receives written notice to the contrary. The Payments Administrator shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing or other writing delivered pursuant to this Section 2.3(a) and, with respect to an oral request for Revolving Loans, the Payments Administrator, acting in good faith, Administrator shall have no duty to verify the identity of any individual representing himself as one of the Authorized Officers officers authorized to make such request on behalf of the applicable Borrower. Neither the Payments Administrator nor any of the Lenders shall incur any liability to the Borrowers Borrower as a result of acting upon any telephonic notice referred to in this Section 1.02(a2.3(a) which notice the Payments Administrator believes in good faith to have been given by an Authorized Officer a duly authorized officer or other individual authorized to request Revolving Loans on behalf of the relevant Borrower or for otherwise acting reasonably and in good faith under this Section 1.02(a2.3(a) and, upon the funding of Revolving Loans by the Lenders in accordance with this Credit Agreement, pursuant to any such telephonic notice, the relevant Borrower shall be deemed to have made a Borrowing of Revolving Loans hereunder.
(iii) In a Notice of Borrowing, each the Borrower may request one or more Borrowings on a single day; provided that at no time shall there be outstanding more than five Borrowings of Eurodollar Loans. Each such Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans of the same Type and shall be in an aggregate amount for all Lenders of not less than $1,000,000 in the Minimum Borrowing Amount, if applicable, for such Borrowing and if greater than case of Eurodollar Rate Loans or $500,000 in the Minimum Borrowing Amount, such Borrowing shall be in an integral multiple case of $1,000,000Base Rate Loans. Unless otherwise requested in the applicable Notice of Borrowing, all 28 Revolving Loans shall be Base Rate Loans. The right of the Borrowers Borrower to choose Eurodollar Rate Loans is subject to the provisions of Section 1.094.3(c).
(iv) The Borrower may not incur Eurodollar Rate Loans prior to the Syndication Date.
(b) The Borrower has informed the Agent that it has decided to open a checking account (the "Disbursement Account") with Bankers Trust (Delaware) ("BT Delaware") for general corporate purposes, including the purpose of paying trade payables and other operating expenses. The Lenders hereby authorize the Payments Administrator to makeAdministrator, and so long as the conditions to for Borrowing in Section Article 5 of this Agreement remain satisfied, the Payments Administrator on behalf of the Lenders may but shall make, not be obligated to make Revolving Loans to cover the Borrowersamount of checks presented for payment and other disbursements from the Disbursement Account. If one Advice from BT Delaware of amounts required to cover such amounts will be deemed a sufficient Notice of Borrowing. Such Borrowings shall be of Base Rate Loans only and will not be subject to the Borrowers has provided minimum amount requirement of Section 2.3(a)(iii).
(c) In the event the Borrower is unable to comply with (i) the Borrowing Base limitations set forth in Section 2.2(a) or (ii) the conditions precedent to the making of a Revolving Loan or the issuance of a Letter of Credit set forth in Section 5.2, the Lenders authorize the Payments Administrator to make Interim Advances to the Borrower for a period commencing on the date the Payments Administrator first receives a Notice of Borrowing pursuant requesting an Interim Advance until the earlier of (i) the fifteenth Business Day after such date (unless the Required Lenders authorize a later date), (ii) the date the Borrower is again able to Section 1.02(acomply with the Borrowing Base limitations and the conditions precedent to the making of Revolving Loans and issuance of Letters of Credit, or obtains an amendment or waiver with respect thereto, or (iii) then the date the Required Lenders instruct the Payments Administrator to cease making Interim Advances (in each case, the "Interim Advance Period"). The Payments Administrator shall disburse not make any Interim Advance to the extent that at such funds in time the manner specified in amount of such Interim Advance when added to the Notice aggregate outstanding amount of Borrowings delivered by other Interim Advances would exceed the applicable Borrowergreater of (1) the lesser of (A) the difference between the Total Commitments and the Outstandings and (B) the greater of (x) $10,000,000 or (y) 10% of the Outstandings and (2) such amount as the Required Lenders shall authorize.
Appears in 1 contract
Borrowing Mechanics. (a) Subject to Except as provided in Section 1.03(b2.3(b), Borrowings shall be made on notice from either the Borrower to the Payments Administrator, given not later than 2:00 1:00 P.M. New York City time on the first Business Day prior to the date on which any the proposed Borrowing consisting of Base Rate Loans is requested to be made and on the third Business Day prior to the date on which any proposed Borrowing consisting of Eurodollar LIBOR Rate Loans is requested to be made.
(i) Each Notice of Borrowing shall be given by either telephone, telecopy, telex, facsimile or cable, and, if by telephone, confirmed in writing, substantially in the form of Exhibit A D (the "“Notice of Borrowing"”). Each Notice of Borrowing shall (x) be irrevocable by and binding on the applicable Borrower and (y) be executed by an Authorized Officer who shall certify that, to the best of such officer's knowledge and without personal liability (a) the proposed extension of credit and its intended use are consistent with the terms of the DIP Credit Documents and the Budget and is necessary, after utilization and application of available cash, in order to satisfy the obligations of the Borrowers and the Subsidiary Guarantors in the ordinary course of business or as otherwise permitted under this Agreement, (b) unless the Borrowing is incurred in order to repay Unpaid Drawings pursuant to Section 2.04(a), the Borrowers and the Subsidiary Guarantors have observed or performed all of their covenants and other agreements and have satisfied in all material respects every condition contained in the DIP Credit Documents and the Orders (as applicable) to be observed, performed or satisfied by the Borrowers or such Subsidiary Guarantors and (c) such officer has no knowledge of any Default or Event of DefaultBorrower.
(ii) The Borrowers Borrower shall notify the Payments Administrator in writing of the names of the officers authorized to request Revolving Loans on behalf of the Borrower, and shall provide the Payments Administrator with a specimen signature of each of the Authorized Officers, who shall be the sole Persons authorized to request Revolving Loans on behalf of the Borrowerssuch officer. The Payments Administrator shall be entitled to rely conclusively on such Authorized Officers' officers’ authority to request Revolving Loans on behalf of the Borrowers Borrower until the Payments Administrator receives written notice to the contrary. The Payments Administrator shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing or other writing delivered pursuant to this Section 2.3(a) and, with respect to an oral request for Revolving Loans, the Payments Administrator, acting in good faith, Administrator shall have no duty to verify the identity of any individual representing himself as one of the Authorized Officers officers authorized to make such request on behalf of the applicable Borrower. Neither the Payments Administrator nor any of the Lenders shall incur any liability to the Borrowers Borrower as a result of acting upon any telephonic notice referred to in this Section 1.02(a2.3(a) which notice the Payments Administrator believes in good faith to have been given by an Authorized Officer a duly authorized officer or other individual authorized to request Revolving Loans on behalf of the relevant Borrower or for otherwise acting reasonably and in good faith under this Section 1.02(a2.3(a) and, upon the funding of Revolving Loans by the Lenders in accordance with this Credit Agreement, pursuant to any such telephonic notice, the relevant Borrower shall be deemed to have made a Borrowing of Revolving Loans hereunder.
(iii) In a Notice of Borrowing, each the Borrower may request one or more Borrowings on a single day; provided that at no time shall there be outstanding more than five Borrowings of Eurodollar Loans. Each such Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans of the same Type and shall be in an aggregate amount for all Lenders of not less than $1,000,000 in the Minimum Borrowing Amount, if applicable, for such Borrowing and if greater than case of LIBOR Rate Loans or $500,000 in the Minimum Borrowing Amount, such Borrowing shall be in an integral multiple case of $1,000,000Base Rate Loans. Unless otherwise requested in the applicable Notice of Borrowing, all Revolving Loans shall be Base Rate Loans. The right of the Borrowers Borrower to choose Eurodollar LIBOR Rate Loans is subject to the provisions of Section 1.094.3(c).
(b) The Borrower has established a checking account (the “Disbursement Account”) with DBTCo for general corporate purposes, including the purpose of paying trade payables and other operating expenses. The Lenders hereby authorize the Payments Administrator to makeAdministrator, and so long as the conditions to for Borrowing in Section Article 5 of this Agreement remain satisfied, the Payments Administrator on behalf of the Lenders may but shall make, not be obligated to make Revolving Loans to cover the Borrowersamount of checks presented for payment and other disbursements from the Disbursement Account. If one Advice from DBTCo of amounts required to cover such amounts will be deemed a sufficient Notice of Borrowing. Such Borrowings shall be of Base Rate Loans only and will not be subject to the Borrowers has provided minimum amount requirement of Section 2.3(a)(iii).
(c) In the event the Borrower is unable to comply with (i) the Borrowing Base limitations set forth in Section 2.2(a) or (ii) the conditions precedent to the making of a Revolving Loan or the issuance of a Letter of Credit set forth in Section 5.2, the Lenders authorize the Payments Administrator to make Interim Advances to the Borrower for a period commencing on the date the Payments Administrator first receives a Notice of Borrowing pursuant requesting an Interim Advance until the earliest to Section 1.02(aoccur of (i) then the fifteenth Business Day after such date (unless the Required Lenders authorize a later date), (ii) the date the Borrower is again able to comply with the Borrowing Base limitations and the conditions precedent to the making of Revolving Loans and issuance of Letters of Credit, or obtains an amendment or waiver with respect thereto, or (iii) the date the Required Lenders instruct the Payments Administrator to cease making Interim Advances (in each case, the “Interim Advance Period”). The Payments Administrator shall disburse not make any Interim Advance to the extent that at such funds in time the manner specified in amount of such Interim Advance when added to the Notice aggregate outstanding amount of Borrowings delivered by other Interim Advances would exceed the applicable Borrowergreater of (1) the lesser of (A) the difference between the Total Commitments and the Outstandings and (B) the greater of (x) $15,000,000 or (y) 10% of the Outstandings and (2) such amount as the Required Lenders shall authorize.
Appears in 1 contract
Borrowing Mechanics. (a) Subject to Except as provided in Section 1.03(b2.3(b), ------------------- Borrowings shall be made on notice from either the Borrower to the Payments Administrator, given not later than 2:00 1:00 P.M. New York City time on the first Business Day prior to the date on which any the proposed Borrowing consisting of Base Rate Loans is requested to be made and on the third Business Day prior to the date on which any proposed Borrowing consisting of Eurodollar Rate Loans is requested to be made.
(i) Each Notice of Borrowing shall be given by either telephone, telecopy, telex, facsimile or cable, and, if by telephone, confirmed in writing, substantially in the form of Exhibit A D (the "Notice of Borrowing"). Each Notice of Borrowing shall (x) be irrevocable by and binding on the applicable Borrower and (y) be executed by an Authorized Officer who shall certify that, to the best of such officer's knowledge and without personal liability (a) the proposed extension of credit and its intended use are consistent with the terms of the DIP Credit Documents and the Budget and is necessary, after utilization and application of available cash, in order to satisfy the obligations of the Borrowers and the Subsidiary Guarantors in the ordinary course of business or as otherwise permitted under this Agreement, (b) unless the Borrowing is incurred in order to repay Unpaid Drawings pursuant to Section 2.04(a), the Borrowers and the Subsidiary Guarantors have observed or performed all of their covenants and other agreements and have satisfied in all material respects every condition contained in the DIP Credit Documents and the Orders (as applicable) to be observed, performed or satisfied by the Borrowers or such Subsidiary Guarantors and (c) such officer has no knowledge of any Default or Event of DefaultBorrower.
(ii) The Borrowers Borrower shall notify the Payments Administrator in writing of the names of the officers authorized to request Revolving Loans on behalf of the Borrower, and shall provide the Payments Administrator with a specimen signature of each of the Authorized Officers, who shall be the sole Persons authorized to request Revolving Loans on behalf of the Borrowerssuch officer. The Payments Administrator shall be entitled to rely conclusively on such Authorized Officersofficers' authority to request Revolving Loans on behalf of the Borrowers Borrower until the Payments Administrator receives written notice to the contrary. The Payments Administrator shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing or other writing delivered pursuant to this Section 2.3(a) and, with respect to an oral request for Revolving Loans, the Payments Administrator, acting in good faith, Administrator shall have no duty to verify the identity of any individual representing himself as one of the Authorized Officers officers authorized to make such request on behalf of the applicable Borrower. Neither the Payments Administrator nor any of the Lenders shall incur any liability to the Borrowers Borrower as a result of acting upon any telephonic notice referred to in this Section 1.02(a2.3(a) which notice the Payments Administrator believes in good faith to have been given by an Authorized Officer a duly authorized officer or other individual authorized to request Revolving Loans on behalf of the relevant Borrower or for otherwise acting reasonably and in good faith under this Section 1.02(a2.3(a) and, upon the funding of Revolving Loans by the Lenders in accordance with this Credit Agreement, pursuant to any such telephonic notice, the relevant Borrower shall be deemed to have made a Borrowing of Revolving Loans hereunder.
(iii) In a Notice of Borrowing, each the Borrower may request one or more Borrowings on a single day; provided that at no time shall there be outstanding more than five Borrowings of Eurodollar Loans. Each such Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans of the same Type and shall be in an aggregate amount for all Lenders of not less than $1,000,000 in the Minimum Borrowing Amount, if applicable, for such Borrowing and if greater than case of Eurodollar Rate Loans or $500,000 in the Minimum Borrowing Amount, such Borrowing shall be in an integral multiple case of $1,000,000Base Rate Loans. Unless otherwise requested in the applicable Notice of Borrowing, all Revolving Loans shall be Base Rate Loans. The right of the Borrowers Borrower to choose Eurodollar Rate Loans is subject to the provisions of Section 1.094.3(c).
(b) The Borrower has established a checking account (the "Disbursement Account") with Bankers Trust (Delaware) ("BT Delaware") for general corporate purposes, including the purpose of paying trade payables and other operating expenses. The Lenders hereby authorize the Payments Administrator to makeAdministrator, and so long as the conditions to for Borrowing in Section Article 5 of this Agreement remain satisfied, the Payments Administrator on behalf of the Lenders may but shall make, not be obligated to make Revolving Loans to cover the Borrowersamount of checks presented for payment and other disbursements from the Disbursement Account. If one Advice from BT Delaware of amounts required to cover such amounts will be deemed a sufficient Notice of Borrowing. Such Borrowings shall be of Base Rate Loans only and will not be subject to the Borrowers has provided minimum amount requirement of Section 2.3(a)(iii).
(c) In the event the Borrower is unable to comply with (i) the Borrowing Base limitations set forth in Section 2.2(a) or (ii) the conditions precedent to the making of a Revolving Loan or the issuance of a Letter of Credit set forth in Section 5.2, the Lenders authorize the Payments Administrator to make Interim Advances to the Borrower for a period commencing on the date the Payments Administrator first receives a Notice of Borrowing pursuant requesting an Interim Advance until the earlier of (i) the fifteenth Business Day after such date (unless the Required Lenders authorize a later date), (ii) the date the Borrower is again able to Section 1.02(acomply with the Borrowing Base limitations and the conditions precedent to the making of Revolving Loans and issuance of Letters of Credit, or obtains an amendment or waiver with respect thereto, or (iii) then the date the Required Lenders instruct the Payments Administrator to cease making Interim Advances (in each case, the "Interim Advance Period"). The Payments Administrator shall disburse not make any Interim Advance to the extent that at such funds in time the manner specified in amount of such Interim Advance when added to the Notice aggregate outstanding amount of Borrowings delivered by other Interim Advances would exceed the applicable Borrowergreater of (1) the lesser of (A) the difference between the Total Commitments and the Outstandings and (B) the greater of (x) $10,000,000 or (y) 10% of the Outstandings and (2) such amount as the Required Lenders shall authorize.
Appears in 1 contract
Borrowing Mechanics. (aA) Subject to Section 1.03(bExcept as provided in SECTIONS 2.2(B), 2.3(B) AND 3.5(A), Borrowings shall be made on notice from either Borrower to the Payments AdministratorAgent, given not later than 2:00 1:00 P.M. New York City time on the first Business Day prior to the date on which any a proposed Borrowing consisting of Base Prime Rate Loans is requested to be made and on the third Business Day prior to the date on which of any proposed Borrowing consisting of Eurodollar LIBOR Rate Loans is requested to be made.
(iI) Each Notice of Borrowing shall be given by either by, alternatively, telephone, telecopy, telex, facsimile or cableelectronic E-mail transmission, and, if by telephonetelephone or electronic E-mail transmission, confirmed in writing, substantially in the form of Exhibit A EXHIBIT C (the "Notice of BorrowingNOTICE OF BORROWING"). Each Notice of Borrowing shall (x) be irrevocable by and binding on the applicable Borrower and (y) be executed by an Authorized Officer who shall certify that, to the best of such officer's knowledge and without personal liability (a) the proposed extension of credit and its intended use are consistent with the terms of the DIP Credit Documents and the Budget and is necessary, after utilization and application of available cash, in order to satisfy the obligations of the Borrowers and the Subsidiary Guarantors in the ordinary course of business or as otherwise permitted under this Agreement, (b) unless the Borrowing is incurred in order to repay Unpaid Drawings pursuant to Section 2.04(a), the Borrowers and the Subsidiary Guarantors have observed or performed all of their covenants and other agreements and have satisfied in all material respects every condition contained in the DIP Credit Documents and the Orders (as applicable) to be observed, performed or satisfied by the Borrowers or such Subsidiary Guarantors and (c) such officer has no knowledge of any Default or Event of DefaultBorrower.
(iiII) The Borrowers Borrower shall notify Agent in writing of the names of the officers of Borrower authorized to request Loans on behalf of Borrower and specifying which of those officers are also, or, if none are, the officers that are, authorized to direct the disbursement of Loans in a manner contrary to standing disbursement instructions, and shall provide the Payments Administrator Agent with a specimen signature of each such officer. In the absence of the Authorized Officersa specification of those officers who are authorized to vary standing disbursement instructions, who shall be the sole Persons Agent may assume that each officer authorized to request Revolving Loans on behalf of the Borrowersalso has such authority. The Payments Administrator Agent shall be entitled to rely conclusively on the authority of such Authorized Officersofficers' authority of Borrower to request Revolving Loans on behalf of the Borrowers Borrower, or to vary standing disbursement instructions, until the Payments Administrator Agent receives written notice to the contrary. The Payments Administrator Agent shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing or other writing delivered pursuant to this SECTION 2.2(A) and, with respect to an oral or electronic E-mail request for Revolving Loans, the Payments Administrator, acting in good faith, Agent shall have no duty to verify the identity of any individual representing himself as one of the Authorized Officers officers of Borrower authorized to make such request on behalf of the applicable Borrower. Neither the Payments Administrator Agent nor any of the Lenders shall incur any liability to the Borrowers Borrower as a result of (A) acting upon any telephonic or electronic E-mail notice referred to in this Section 1.02(aSECTION 2.2(A) which notice the Payments Administrator if Agent believes in good faith such notice to have been given by an Authorized Officer a duly authorized officer of Borrower or other individual authorized to request Loans on behalf of the relevant Borrower or for to direct the disbursement thereof in a manner contrary to standing disbursement instructions, or (B) otherwise acting reasonably and in good faith under this Section 1.02(aSECTION 2.2(A) and, upon the funding of Revolving Loans by the Lenders in accordance with this Agreement, and an advance made and disbursed pursuant to any such telephonic notice, the relevant Borrower or electronic E-mail notice shall be deemed to have made be a Borrowing Loan for all purposes of Revolving Loans hereunderthis Credit Agreement.
(iiiIII) In a its Notice of Borrowing, each Borrower may request one or more Borrowings on a single day; provided that at no time shall there be outstanding more than five Borrowings of Eurodollar Loans. Each such Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans of the same Type and shall shall, in the case of a Borrowing of LIBOR Rate Loans, be in an aggregate amount for all Lenders of not less than the Minimum Borrowing Amount, if applicable, for such Borrowing and if greater than the Minimum Borrowing Amount, such Borrowing shall be in $5,000,000 or an integral multiple of $1,000,000. Unless otherwise requested 1,000,000 in the applicable Notice of Borrowing, all Revolving Loans shall be Base Rate Loansexcess thereof. The right of the Borrowers Borrower to choose Eurodollar LIBOR Rate Loans is subject to the provisions of Section 1.09SECTION 4.3(C).
(bB) The Lenders hereby authorize (I) In the Payments Administrator event Borrower is unable to make, and so long as comply with (A) the Borrowing Base limitation set forth in CLAUSE (II)(B) of the PROVISO to SECTION 2.1(A) or (B) the conditions precedent set forth in SECTION 5.2 to Borrowing in Section 5 of this Agreement remain satisfieda Credit Event, the Payments Administrator on behalf of the Lenders shall makeauthorize Agent, in its sole discretion, to make Revolving Loans ("INTERIM ADVANCES") to Borrower during the Borrowers. If one of period commencing on the Borrowers has provided date Agent first receives a Notice of Borrowing pursuant requesting an Interim Advance until the earliest of (1) the twentieth (20th) Business Day after such date, (2) the date Borrower is again able to Section 1.02(acomply with such Borrowing Base limitation and conditions precedent, or obtains an amendment or waiver with respect thereto and (3) then the Payments Administrator shall disburse such funds date the Majority Lenders instruct Agent, or Agent determines, to cease making Interim Advances (in each case, the manner specified in the Notice of Borrowings delivered by the applicable Borrower"INTERIM ADVANCE PERIOD").
Appears in 1 contract
Samples: Credit Agreement (Weider Nutrition International Inc)
Borrowing Mechanics. (a) Subject to Section 1.03(bFunds Administrator shall give Lender prior telephonic notice (immediately confirmed in writing, in substantially the form of Exhibit B hereto (a “Notice of Borrowing”), Borrowings shall be made on notice from either Borrower to the Payments Administrator, given not later than 2:00 P.M. New York City time 10:00 a.m. on the first Business Day prior date of borrowing of a Loan; provided, that, notwithstanding anything to the date on which contrary set forth herein, except as otherwise previously agreed to by Lender, Funds Administrator shall not submit a Notice of Borrowing and Lender shall not be required to make any proposed Borrowing consisting of Base Rate Loans is requested to be made and on the third Business Day prior to the date on which Loan more than once in any proposed Borrowing consisting of Eurodollar Loans is requested to be made.
(i) week. Each Notice of Borrowing shall be given by either telephoneirrevocable and shall specify (i) the principal amount of the proposed Loan, telecopy, telex, facsimile or cable, and, if by telephone, confirmed in writing, substantially in the form of Exhibit A (the "Notice of Borrowing"). Each Notice of Borrowing shall (x) be irrevocable by and binding on the applicable Borrower and (y) be executed by an Authorized Officer who shall certify that, to the best of such officer's knowledge and without personal liability (aii) the proposed extension of credit and its intended use are consistent with the terms of the DIP Credit Documents and the Budget and is necessaryborrowing date therefor, after utilization and application of available cash, in order to satisfy the obligations of the Borrowers and the Subsidiary Guarantors in the ordinary course of business or as otherwise permitted under this Agreement, which must be a Business Day.
(b) unless The Funds Administrator shall notify Lender in writing of the Borrowing is incurred in order names of the officers of Funds Administrator authorized to repay Unpaid Drawings pursuant to Section 2.04(a)request Loans on behalf of Borrowers and specifying which of those officers are also, or, if none are, the Borrowers officers that are, authorized to direct the disbursement of Loans in a manner contrary to standing disbursement instructions, and the Subsidiary Guarantors have observed or performed all of their covenants and other agreements and have satisfied in all material respects every condition contained in the DIP Credit Documents and the Orders (as applicable) to be observed, performed or satisfied by the Borrowers or such Subsidiary Guarantors and (c) such officer has no knowledge of any Default or Event of Default.
(ii) The Borrowers shall provide the Payments Administrator Lender with a specimen signature of each such officer. In the absence of the Authorized Officersa specification of those officers who are authorized to vary standing disbursement instructions, who shall be the sole Persons Lender may assume that each officer authorized to request Revolving Loans on behalf of the Borrowersalso has such authority. The Payments Administrator Lender shall be entitled to rely conclusively on the authority of such Authorized Officers' authority officers of Funds Administrator to request Revolving Loans on behalf of the Borrowers Borrowers, or to vary standing disbursement instructions, until the Payments Administrator Lender receives written notice to the contrary. The Payments Administrator Lender shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing or other writing delivered pursuant to this Section 2.2 and, with respect to an oral or electronic mail request for Revolving Loans, the Payments Administrator, acting in good faith, Lender shall have no duty to verify the identity of any individual representing himself as one of the Authorized Officers officers of a Borrower authorized to make such request on behalf of the applicable such Borrower. Neither the Payments Administrator nor any of the Lenders Lender shall not incur any liability to the Borrowers any Credit Party as a result of (i) acting upon any telephonic or electronic mail notice referred to in this Section 1.02(a) which notice the Payments Administrator 2.2 if Lender believes in good faith such notice to have been given by an Authorized Officer a duly authorized officer of Funds Administrator or other individual authorized to request Loans on behalf of Borrowers or to direct the relevant Borrower disbursement thereof in a manner contrary to standing disbursement instructions, or for (ii) otherwise acting reasonably and in good faith under this Section 1.02(a) and, upon the funding of Revolving Loans by the Lenders in accordance with this Agreement, 2.2 and an advance made and disbursed pursuant to any such telephonic notice, the relevant Borrower or electronic mail notice shall be deemed to have made be a Borrowing Loan for all purposes of Revolving Loans hereunderthis Credit Agreement.
(iiic) In a Notice addition to being evidenced, as provided in Section 2.5, by Borrowers’ Account, the Loans and Borrowers’ joint and several obligations to repay the Loans with interest in accordance with the terms of Borrowingthis Credit Agreement shall be evidenced by this Credit Agreement, the records of Lender and each Borrower may request one or more Borrowings on a single day; provided that at no time Note. The records of Lender shall there be outstanding more than five Borrowings of Eurodollar Loans. Each Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans prima facie evidence of the same Type Loans and shall be accrued interest thereon and of all payments made in an aggregate amount for all Lenders of not less than the Minimum Borrowing Amount, if applicable, for such Borrowing and if greater than the Minimum Borrowing Amount, such Borrowing shall be in an integral multiple of $1,000,000. Unless otherwise requested in the applicable Notice of Borrowing, all Revolving Loans shall be Base Rate Loans. The right of the Borrowers to choose Eurodollar Loans is subject to the provisions of Section 1.09respect thereof.
(bd) The Lenders hereby authorize Notwithstanding the Payments obligation of Funds Administrator to make, and so long as the conditions to Borrowing in Section 5 send written confirmation of this Agreement remain satisfied, the Payments Administrator on behalf of the Lenders shall make, Revolving Loans to the Borrowers. If one of the Borrowers has provided a Notice of Borrowing pursuant to Section 1.02(a) then the Payments Administrator shall disburse such funds made by telephone or electronic mail transmission if and when requested by Lender, in the manner specified event that Lender agrees to accept a Notice of Borrowing made by telephone or electronic mail transmission, such Notice of Borrowing shall be binding on Borrowers whether or not written confirmation is sent by Funds Administrator or requested by Lender. Lender may act prior to the receipt of any requested written confirmation, without any liability whatsoever, based upon telephonic or electronic mail notice believed by Lender in good faith to be from Funds Administrator or its agents. Lender’s records of the terms of any telephonic or electronic mail transmission Notices of Borrowing shall be conclusive on Borrowers in the Notice absence of Borrowings delivered by gross negligence or willful misconduct on the applicable Borrowerpart of Lender in connection therewith.
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Borrowing Mechanics. (ai) Subject to Section 1.03(b), Borrowings All requested advances under this Agreement shall be made on by the Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender's obligation to make its share of a requested advance hereunder nor shall the Commitment of any Lender be increased or decreased as a result of a default by any other Lender in that other Lender's obligation to make its share of a requested advance hereunder, provided that any one or more of the nondefaulting Lenders may, in their sole discretion and by a written notice from either Borrower to the Payments AdministratorBorrower, given the Administrative Agent and the defaulting Lender, elect to assume that portion of the Commitment of a defaulting Lender not later then being honored by such defaulting Lender and, in any such case, the Commitment of such nondefaulting Lenders and the Commitment of such defaulting Lender shall be appropriately adjusted to reflect such assumption (if more than 2:00 P.M. New York City time on one nondefaulting Lender shall desire to effect the first Business Day assumption referred to in this clause (a), such assumption shall be shared ratably among such nondefaulting Lenders in accordance with their Commitments, as determined immediately prior to the date on which any proposed Borrowing consisting of Base Rate Loans is requested to be made such assumption) and on the third Business Day prior to the date on which any proposed Borrowing consisting of Eurodollar Loans is requested to be made.
(i) Each Notice of Borrowing new Notes shall be given by either telephone, telecopy, telex, facsimile or cable, and, if by telephone, confirmed issued in writing, substantially in exchange for the form of Exhibit A (the "Notice of Borrowing"). Each Notice of Borrowing shall (x) be irrevocable by and binding on the applicable Borrower and (y) be executed by an Authorized Officer who shall certify that, then outstanding Notes to the best of reflect such officer's knowledge and without personal liability (a) the proposed extension of credit and its intended use are consistent with the terms of the DIP Credit Documents and the Budget and is necessary, after utilization and application of available cash, in order to satisfy the obligations of the Borrowers and the Subsidiary Guarantors in the ordinary course of business or as otherwise permitted under this Agreement, (b) unless the Borrowing is incurred in order to repay Unpaid Drawings pursuant to Section 2.04(a), the Borrowers and the Subsidiary Guarantors have observed or performed all of their covenants and other agreements and have satisfied in all material respects every condition contained in the DIP Credit Documents and the Orders (as applicable) to be observed, performed or satisfied by the Borrowers or such Subsidiary Guarantors and (c) such officer has no knowledge of any Default or Event of Defaultassumption.
(ii) The Borrowers Each Lender shall provide either (A) deliver the Payments Administrator with a specimen signature amount of each of its Pre-Sale Advances or Project Advances directly to the Authorized Officers, who Administrative Agent on the applicable Advance Date in respect thereof as provided for herein or (B) deliver the amount of each of its Pre-Sales Advances or Project Advances as provided in Section 10.7(b) hereof. Each Lender shall be inform the sole Persons authorized to request Revolving Loans on behalf Administrative Agent in writing of its preferred way of making its Pro Rata Share of the Borrowers. The Payments Administrator shall be entitled to rely conclusively on such Authorized Officers' authority to request Revolving Loans on behalf of the Borrowers until the Payments Administrator receives written notice to the contrary. The Payments Administrator shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing and, with respect to an oral request for Revolving Loans, the Payments Administrator, acting in good faith, shall have no duty to verify the identity of any individual representing himself as one of the Authorized Officers authorized to make such request on behalf of the applicable Borrower. Neither the Payments Administrator nor any of the Lenders shall incur any liability to the Borrowers as a result of acting upon any telephonic notice referred to in this Section 1.02(a) which notice the Payments Administrator believes in good faith to have been given by an Authorized Officer on behalf of the relevant Borrower or for otherwise acting reasonably Pre-Sale Advance and in good faith under this Section 1.02(a) and, upon the funding of Revolving Loans by the Lenders in accordance with this Agreement, pursuant to any such telephonic notice, the relevant Borrower shall be deemed to have made a Borrowing of Revolving Loans Project Advances hereunder.
(iii) In a Notice of Borrowing, each Borrower may request one or more Borrowings on a single dayThis clause (iii) shall apply with the respect to any Lender that shall have elected option (A) under Section 2.3(a)(ii) hereof; provided that at no time otherwise Section 10.7(b) hereof shall there be outstanding more than five Borrowings of Eurodollar Loansapply. Each Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans Subject to the satisfaction of the same Type conditions precedent set forth in Section 6 hereof, the Administrative Agent shall deliver the proceeds of the Pro Rata Share of each Pre-Sale Advance or Project Advance from each Lender delivered to it in immediately available funds to the Borrower on the applicable Advance Date in immediately available funds as provided for in Schedule 10 hereto. Unless the Administrative Agent shall have been notified by a Lender prior to any applicable Advance Date that such Lender does not intend to make available to the Administrative Agent its Pro Rata Share of a Pre-Sale Advance or Project Advance in respect of such Advance Date, the Administrative Agent may assume, for purposes of this clause (iii), that such Lender will make such Pro Rata Share of such Pre-Sale Advance or Project Advance then requested available to the Administrative Agent on the applicable Advance Date, and the Administrative Agent may, in its sole discretion, but shall not be obligated to, deliver to the Borrower, as provided in clause (ii) above, the amount of such Pro Rata Share of such Advance. If such Lender does not in fact make such Pro Rata Share of such Pre-Sale Advance or Project Advance available to the Administrative Agent on the applicable Advance Date, the Administrative Agent shall be entitled to recover such amount from such Lender together with interest accrued thereon at the Interest Rate. If such Lender shall not pay to the Administrative Agent such amount (together with interest) forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may promptly inform, in an aggregate amount writing, the Borrower of such circumstances and the Borrower shall promptly repay such Pro Rata Share of such Pre-Sale Advance or Project Advance together with interest accrued thereon at the Interest Rate for all Lenders the period of not less than the Minimum Borrowing Amount, if applicable, for time such Borrowing and if greater than the Minimum Borrowing Amount, such Borrowing Pre-Sale Advance or Interest Advance shall have been outstanding. Nothing in this clause (iii) shall be deemed to relieve any Lender from its obligations to fulfill its Commitment hereunder and nothing in an integral multiple of $1,000,000. Unless otherwise requested in the applicable Notice of Borrowing, all Revolving Loans this clause (iii) shall be Base Rate Loans. The right of the Borrowers deemed to choose Eurodollar Loans is subject to the provisions of Section 1.09relieve any nondefaulting Lender from its rights under clause (i) above.
(b) The Lenders hereby authorize the Payments Administrator to make, and so long as the conditions to Borrowing in Section 5 of this Agreement remain satisfied, the Payments Administrator on behalf of the Lenders shall make, Revolving Loans to the Borrowers. If one of the Borrowers has provided a Notice of Borrowing pursuant to Section 1.02(a) then the Payments Administrator shall disburse such funds in the manner specified in the Notice of Borrowings delivered by the applicable Borrower.
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Borrowing Mechanics. The Loans made on each Funding Date (aother than Loans made pursuant to Section 3.3B for the purpose of reimbursing Issuing Lender for the amount of a drawing under a Letter of Credit issued by it) shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount; provided that each Eurodollar Rate Loan shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount. Subject to Section 1.03(b)the next following paragraph, Borrowings whenever Borrower desires that Lenders make Loans it shall be made on notice from either Borrower deliver to the Payments Administrator, given not Administrative Agent a Notice of Borrowing no later than 2:00 P.M. New York City time on 9:00 A.M. (Pacific time) at least three Business Days in advance of the first proposed Funding Date (in the case of a Eurodollar Rate Loan) or at least one Business Day prior to in advance of the date on which any proposed Borrowing consisting Funding Date (in the case of a Base Rate Loans is requested to be made and on the third Business Day prior to the date on which any proposed Borrowing consisting of Eurodollar Loans is requested to be made.
(i) Each Loan). The Notice of Borrowing shall specify (i) the proposed Funding Date (which shall be given by either telephonea Business Day), telecopy(ii) the amount of Loans requested, telex(iii) whether such Loans shall be Base Rate Loans or Eurodollar Rate Loans, facsimile or cable, and, if by telephone, confirmed in writing, substantially and (iv) in the form case of Exhibit A (a Eurodollar Rate Loan, the "Notice initial Interest Period requested therefor. Loans may be continued as or converted into Base Rate Loans and Eurodollar Rate Loans in the manner provided in Section 2.2D. Unless Administrative Agent, in its sole and absolute discretion, has notified Borrower to the contrary, a Loan may be requested by telephone by a duly authorized officer or other Person authorized to borrow on behalf of Borrowing"). Each Borrower, in which case Borrower shall confirm such request by delivering promptly a Notice of Borrowing shall (x) be irrevocable by and binding on the applicable Borrower and (y) be executed by an Authorized Officer who shall certify that, to the best of such officer's knowledge and without personal liability (a) the proposed extension of credit and its intended use are consistent with the terms of the DIP Credit Documents and the Budget and is necessary, after utilization and application of available cash, in order to satisfy the obligations of the Borrowers and the Subsidiary Guarantors in the ordinary course of business or as otherwise permitted under this Agreement, (b) unless the Borrowing is incurred in order to repay Unpaid Drawings pursuant to Section 2.04(a), the Borrowers and the Subsidiary Guarantors have observed or performed all of their covenants and other agreements and have satisfied in all material respects every condition contained in the DIP Credit Documents and the Orders (as applicable) to be observed, performed or satisfied by the Borrowers or such Subsidiary Guarantors and (c) such officer has no knowledge of any Default or Event of Default.
(ii) The Borrowers shall provide the Payments Administrator with a specimen signature of each of the Authorized Officers, who shall be the sole Persons authorized to request Revolving Loans on behalf of the Borrowers. The Payments Administrator shall be entitled to rely conclusively on such Authorized Officers' authority to request Revolving Loans on behalf of the Borrowers until the Payments Administrator receives written notice to the contrary. The Payments Administrator shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing and, with respect to an oral request for Revolving Loans, the Payments Administrator, acting such Loan in good faith, shall have no duty person or by telecopier to verify the identity of any individual representing himself as one of the Authorized Officers authorized to make such request on behalf of the applicable BorrowerAdministrative Agent. Neither the Payments Administrator Administrative Agent nor any of the Lenders Lender shall incur any liability to the Borrowers as a result of any Loan Party in acting upon any such telephonic notice referred to in this Section 1.02(a) which notice the Payments Administrator that Administrative Agent believes in good faith to have been given by an Authorized Officer a duly authorized officer or other person authorized to borrow on behalf of the relevant Borrower or for otherwise acting reasonably and in good faith under this Section 1.02(a) and2.1B, and upon the funding of Revolving Loans by the Lenders in accordance with this Agreement, Agreement pursuant to any such telephonic notice, the relevant notice Borrower shall be deemed to have made a Borrowing of Revolving effected Loans hereunder.
(iii) In a . Borrower shall notify Administrative Agent prior to the funding of any Loans in the event that any of the matters to which Borrower is required to certify in the applicable Notice of Borrowing, each Borrower may request one or more Borrowings on a single day; provided that at Borrowing is no time shall there be outstanding more than five Borrowings of Eurodollar Loans. Each Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans longer true and correct as of the same Type applicable Funding Date, and the acceptance by Borrower of the proceeds of any Loans shall be in an aggregate amount for all Lenders constitute a re-certification by Borrower, as of not less than the Minimum Borrowing Amountapplicable Funding Date, if applicable, for such Borrowing and if greater than as to the Minimum Borrowing Amount, such Borrowing shall be in an integral multiple of $1,000,000. Unless otherwise requested matters to which Borrower is required to certify in the applicable Notice of Borrowing. Except as otherwise provided in Sections 2.6B, all Revolving Loans shall be Base Rate Loans. The right of the Borrowers to choose Eurodollar Loans is subject to the provisions of Section 1.09.
(b) The Lenders hereby authorize the Payments Administrator to make2.6C and 2.6G, and so long as the conditions to Borrowing in Section 5 of this Agreement remain satisfied, the Payments Administrator on behalf of the Lenders shall make, Revolving Loans to the Borrowers. If one of the Borrowers has provided a Notice of Borrowing pursuant for a Eurodollar Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable on and after the related Interest Rate Determination Date, and Borrower shall be bound to Section 1.02(a) then the Payments Administrator shall disburse such funds make a borrowing in the manner specified in the Notice of Borrowings delivered by the applicable Borroweraccordance therewith.
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Borrowing Mechanics. (a) Subject to Except as provided in Section 1.03(b2.3(b) or (c), Borrowings shall be made on notice from either the Borrower to the Payments AdministratorAdministrative Agent, given not later than 2:00 1:00 P.M. (New York City time time) on the first Business Day prior to the date on which any the proposed Borrowing consisting of Base Rate Loans is requested to be made and on the third Business Day prior to the date on which any proposed Borrowing consisting of Eurodollar Rate Loans is requested to be made.
(i) Each Notice of Borrowing shall be given by either telephone, telecopy, telex, facsimile or cable, and, if by telephone, confirmed in writing, substantially in the form of Exhibit A B-1 (the "“Notice of Borrowing"”), appropriately completed to specify the aggregate principal amount of the Revolving Loans to be made pursuant to such Borrowing, the date of such Borrowing (which shall be a Business Day) and whether the Revolving Loans being made pursuant to such Borrowing are to be initially maintained as Base Rate Loans or Eurodollar Rate Loans and, if Eurodollar Rate Loans, the initial Interest Period to be applicable thereto. The Administrative Agent shall promptly give each Revolving Credit Lender notice of such proposed Borrowing, of such Lender’s proportionate share thereof and of the other matters required by the second immediately preceding sentence to be specified in the Notice of Borrowing. Each Notice of Borrowing shall (x) be irrevocable by and binding on the applicable Borrower and (y) be executed by an Authorized Officer who shall certify that, to the best of such officer's knowledge and without personal liability (a) the proposed extension of credit and its intended use are consistent with the terms of the DIP Credit Documents and the Budget and is necessary, after utilization and application of available cash, in order to satisfy the obligations of the Borrowers and the Subsidiary Guarantors in the ordinary course of business or as otherwise permitted under this Agreement, (b) unless the Borrowing is incurred in order to repay Unpaid Drawings pursuant to Section 2.04(a), the Borrowers and the Subsidiary Guarantors have observed or performed all of their covenants and other agreements and have satisfied in all material respects every condition contained in the DIP Credit Documents and the Orders (as applicable) to be observed, performed or satisfied by the Borrowers or such Subsidiary Guarantors and (c) such officer has no knowledge of any Default or Event of DefaultBorrower.
(ii) The Borrowers Borrower shall provide notify the Payments Administrator with a specimen signature of each Administrative Agent in writing of the Authorized Officers, who shall be names of the sole Persons officers authorized to request Revolving Loans on behalf of the BorrowersBorrower, and shall provide the Administrative Agent with a specimen signature of each such officer. The Payments Administrator Administrative Agent shall be entitled to rely conclusively on such Authorized Officers' officers’ authority to request Revolving Loans on behalf of the Borrowers Borrower until the Payments Administrator Administrative Agent receives written notice to the contrary. The Payments Administrator Administrative Agent shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing or other writing delivered pursuant to this Section 2.3(a) and, with respect to an oral request for Revolving Loans, the Payments Administrator, acting in good faith, Administrative Agent shall have no duty to verify the identity of any individual representing himself as one of the Authorized Officers officers authorized to make such request on behalf of the applicable Borrower. Neither the Payments Administrator Administrative Agent nor any of the Lenders shall incur any liability to the Borrowers Borrower as a result of acting upon any telephonic notice referred to in this Section 1.02(a2.3(a) which notice the Payments Administrator Administrative Agent believes in good faith to have been given by an Authorized Officer a duly authorized officer or other individual authorized to request Revolving Loans on behalf of the relevant Borrower or for otherwise acting reasonably and in good faith under this Section 1.02(a2.3(a) and, upon the funding of Revolving Loans by the Lenders in accordance with this Credit Agreement, pursuant to any such telephonic notice, the relevant Borrower shall be deemed to have made a Borrowing of such Revolving Loans hereunder.
(iii) In a Notice of Borrowing, each the Borrower may request one or more Borrowings on a single day; provided that at no time shall there be outstanding more than five Borrowings of Eurodollar Loans. Each such Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans of the same Type and shall be in an aggregate amount for all Lenders of not less than $1,000,000 in the Minimum Borrowing Amount, if applicable, for such Borrowing and if greater than the Minimum Borrowing Amount, such Borrowing shall be in an integral multiple case of $1,000,000Eurodollar Rate Loans. Unless otherwise requested in the applicable Notice of Borrowing, all Revolving Loans shall be Base Rate Loans. All Term Loans and Revolving Loans made (or deemed made) on the Effective Date shall initially be Base Rate Loans and thereafter may be continued as Base Rate Loans or converted into Eurodollar Rate Loans, in the manner provided in Section 4.3(b). The right of the Borrowers Borrower to choose Eurodollar Rate Loans is subject to the provisions of Section 1.092.3(a)(v) and 4.3(c).
(iv) Upon the Administrative Agent’s receipt of one or more Notices of Borrowing with respect to the Revolving Loans to be made on any given date, the Administrative Agent shall give each Lender prompt notice by telephone or facsimile transmission of such Notice of Borrowing. Subject to the reasonable determination by the Administrative Agent that the applicable conditions for borrowing contained in Article 5 are satisfied, each Revolving Credit Lender shall make available to the Administrative Agent at the Payment Office its Revolving Credit Proportionate Share of the aggregate amount of Revolving Loans to be made on such date, in immediately available funds no later than 3:00 P.M. New York City time on such date. Notwithstanding the foregoing, Incremental Revolving Loans to be made on any date shall be made in accordance with the relevant provisions of Section 2.1. Unless the Administrative Agent receives contrary written notice prior to (unless the Initial Borrowing Date is the date of such Borrowing, in which case no later than 11:00 A.M. (New York City time) on the Initial Borrowing Date) the date of any Borrowing, it is entitled to assume that each Revolving Credit Lender will make available the amounts specified above and, in reliance upon such assumption, but without any obligation to do so, the Administrative Agent may advance such amounts on behalf of the Revolving Credit Lenders (with the Revolving Credit Lenders being obligated to the Administrative Agent for any such advances in accordance with the provisions of Section 2.4).
(v) Notwithstanding the foregoing, prior to the Syndication Date, Loans may only be incurred and maintained as, and/or Converted into, Eurodollar Rate Loans as long as such Loans, together with all other outstanding Eurodollar Rate Loans, are subject to a one-month Interest Period which, in each case, begins and ends on the same day, with the first of such Interest Periods not to begin prior to the third Business Day following the Initial Borrowing Date.
(b) The Borrower has informed the Administrative Agent that it has a checking account (such checking account, together with any other checking accounts established as contemplated in the last sentence of this clause (b) collectively, the “Disbursement Account”) with BofA for general corporate purposes, including the purpose of paying trade payables and other operating expenses. The Lenders hereby authorize the Payments Administrator to makeAdministrative Agent and, and so long as the conditions to for Borrowing in Section Article 5 of this Agreement remain satisfied, the Payments Administrator Administrative Agent on behalf of the Lenders may but shall make, not be obligated to make Revolving Loans to cover the Borrowersamount of checks presented for payment and other disbursements from the Disbursement Account. If one Such Borrowings shall be of Base Rate Loans only and will at no time exceed the amount available for the Borrowing of Revolving Loans under Section 2.2 (as determined in good faith by the Administrative Agent). The Borrower may open additional checking accounts with financial institutions satisfactory to the Administrative Agent so long as each such checking account constitutes a Deposit Account (as defined in the U.S. Security Agreement) and is subject to a Control Agreement as provided in the U.S. Security Agreement.
(c) In the event the Borrower is unable to comply with (i) the Borrowing Base limitations set forth in Section 2.2(a)(ii) or (ii) the conditions precedent to the making of a Revolving Loan or the issuance of a Letter of Credit set forth in Section 5.2, the Lenders authorize the Administrative Agent, for the account of the Borrowers has provided Lenders, to make Revolving Loans (the “Agent Advances”) to the Borrower for a period commencing on the date the Administrative Agent first receives a Notice of Borrowing pursuant requesting an Agent Advance until the earlier of (i) the date the Borrower is again able to Section 1.02(acomply with the Borrowing Base limitations and the conditions precedent to the making of Revolving Loans and issuance of Letters of Credit, or obtains an amendment or waiver with respect thereto or (ii) then the Payments Administrator date the Required Lenders instruct the Administrative Agent to cease making Agent Advances (in each case, the “Agent Advance Period”). The Administrative Agent shall disburse not make any Agent Advance (i) to the extent that at such funds in time the manner specified in amount of such Agent Advance when added to the Notice aggregate outstanding amount of Borrowings delivered other Agent Advances would exceed the lesser of (x) the remainder of the Total Revolving Credit Commitments at such time less the Revolving Outstandings at such time and (y) 5% of the Revolving Outstandings at the time of the first request for an Agent Advance during the related Agent Advance Period or (ii) if the Administrative Agent believes that the making of the respective Agent Advance may cause a violation of the relevant provisions of the Senior Unsecured Notes Indenture or the Senior Secured Notes Indenture (it being understood and agreed that the Administrative Agent may, but shall not be required to, require such officer’s certificates and/or opinions of counsel from the Borrower to the effect that no such violation of the Senior Unsecured Notes Indenture or the Senior Secured Notes Indenture shall occur as a result of the making of the respective Agent Advance). It is understood and agreed that, subject to the requirements set forth above, Agent Advances may be made by the applicable BorrowerAdministrative Agent in its discretion and that the Borrower shall have no right to require that any Agent Advances be made. Agent Advances will be subject to periodic settlement with the Lenders under Section 2.4.
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Samples: Credit Agreement (Williams Scotsman International Inc)
