Competitive Bid Loans. The Company may obtain loans under Sections 1.1 and 1.2 pursuant to the competitive bid procedures set forth in the Section 1.10 ("Competitive Bid Loans"), subject to the terms and conditions of Section 1.1 or 1.1 (as the case may be), except as otherwise provided in this Section 1.10. Each Bank may make such Competitive Bid Loans to the Company, subject to the terms and conditions hereof, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of Competitive Bid Loans made against the Aggregate Commitment shall reduce each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any of the terms of such Competitive Bid Loan. The procedure for making Competitive Bid Loans shall be as follows: (a) The Company may make requests for bids from the Banks to make Competitive Bid Loans ("Competitive Bids") not later than 9:00 a.m., Milwaukee time, on the proposed borrowing date for one or more Competitive Bid Loans. Each such request shall be given directly to each of the Banks, shall be given in writing (which may be a facsimile transmission) signed by the Company, and shall specify (I) the proposed borrowing date, which shall be a Business Day, (ii) the aggregate amount of the requested Competitive Bid Loans, which shall not be less than $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000, (iii) the interest period for each Competitive Bid Loan ("Loan Period"), which shall commence on the applicable borrowing date and end on a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day of each such Loan Period, and (iv) if more than one Loan Period is so specified, the principal amount allocable to each such Loan Period. (b) Each Bank in its sole discretion may (but is not obligated to) submit one or more Competitive Bids to the Company not later than 11:00 a.m., Milwaukee time, on the proposed borrowing date specified in such request for Competitive Bids (such 11:00 a.m. time being herein called the "Submission Deadline") by facsimile or in writing, and thereby irrevocably offer to make all or any part (any such part referred to as a "Portion") of any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids may be delivered by any Bank. (c) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent in the form of Part 3 to Exhibit 2.1 hereto on each Business Day on which there is any change in the aggregate outstanding principal amount of Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on such Business Day. (d) If the Company accepts a Portion of a proposed Competitive Bid Loan for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period an no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make such Competitive Bid Loan (or Portions thereof) in an aggregate principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banks. (e) Not later than 1:30 p.m., Milwaukee time, on the relevant borrowing date, each Bank whose Competitive Bid was accepted by the Company shall make available to the Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, in immediately available funds. (h) Section 2.2(b) of the Credit Agreement is amended by adding an additional subparagraph (3) thereto, reading in its entirety as follows:
Appears in 3 contracts
Samples: Credit Agreement (Oshkosh B Gosh Inc), Credit Agreement (Oshkosh B Gosh Inc), Credit Agreement (Oshkosh B Gosh Inc)
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 and 1.2 pursuant (a) In addition to Revolving Credit Loans, at any time prior to the competitive bid procedures Revolving Credit Termination Date and provided no Default or Event of Default exists hereunder, the Borrower may, as set forth in the Section 1.10 ("Competitive Bid Loans"), subject to the terms and conditions of Section 1.1 or 1.1 (as the case may be), except as otherwise provided in this Section 1.10. Each Bank may 2.5, request the Revolving Credit Lenders to make such offers to make Competitive Bid Loans to the CompanyBorrower in Dollars. The Revolving Credit Lenders may, subject to but shall have no obligation to, make such offers and the terms Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section 2.5. There may be no more than ten (10) Interest Periods, and conditions hereofno more than one (1) one-week Interest Periods, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of for all Revolving Credit Loans and Competitive Bid Loans made against outstanding at the Aggregate Commitment shall reduce same time (for which purpose Interest Periods for each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Eurodollar Revolving Credit Loan and each Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any of the terms of such Competitive Bid Loandeemed to be different Interest Periods even if they are coterminous). The procedure for making aggregate principal amount of all Outstanding Revolving Credit Obligations shall not exceed the Total Revolving Credit Commitment at any time. The aggregate principal amount of all outstanding Competitive Bid Loans shall be as follows:not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any time.
(ab) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative Agent and the Revolving Credit Lenders notice (a “Competitive Bid Quote Request”) to be received no later than 12:00 Noon on (A) the fourth Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree). The Company Borrower may make requests for bids from the Banks request offers to make Competitive Bid Loans for up to three ("Competitive Bids"3) not later than 9:00 a.m., Milwaukee time, on different Interest Periods in a single notice; provided that the proposed borrowing date request for one or more each separate Interest Period shall be deemed to be a separate Competitive Bid LoansQuote Request for a separate borrowing (a “Competitive Bid Borrowing”) and there shall not be outstanding at any one time more than four (4) Competitive Bid Borrowings. Each such request Competitive Bid Quote Request shall be given directly to each substantially in the form of the Banks, shall be given in writing (which may be a facsimile transmission) signed by the Company, Exhibit G attached hereto and shall specify as to each Competitive Bid Borrowing:
(Ii) the proposed borrowing datedate of such borrowing, which shall be a Business Day, ;
(ii) the aggregate amount of the requested such Competitive Bid LoansBorrowing, which shall not be less than at least $10,000,000 (or in increments of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000, ) but shall not cause the limits specified in Section 2.5(a) hereof to be violated;
(iii) the interest period for each Competitive Bid Loan ("Loan Period"), which shall commence on duration of the Interest Period applicable borrowing date and end on a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day of each such Loan Period, and thereto;
(iv) whether the Competitive Bid Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Eurodollar Competitive Rate;
(v) whether the Borrower shall have the right to prepay a requested Competitive Bid Loan; and
(vi) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the “Quotation Date”). Except as otherwise provided in this Section 2.5(b), no more than one Loan Period is so specified, two (2) Competitive Bid Quote Requests shall be given within five (5) Business Days (or such other number of days as the principal amount allocable to each such Loan PeriodBorrower and the Administrative Agent may agree) of any other Competitive Bid Quote Request.
(bi) Each Bank in its sole discretion Revolving Credit Lender may (but is not obligated to) submit one or more Competitive Bids Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if the Borrower’s request under Section 2.5(b) hereof specified more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the Company Borrower not later than 11:00 a.m., Milwaukee time, 9:30 A.M. on (A) the third Business Day prior to the proposed borrowing date specified of borrowing, in such request the case of a Competitive Bid Quote Request for Competitive Bids Bid Loans at the Eurodollar Competitive Rate or (such 11:00 a.m. time being herein called B) the "Submission Deadline") by facsimile or Quotation Date, in writingthe case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, and thereby irrevocably offer to make all or any part (in any such part referred to case, such other time and date as a "Portion"the Borrower and the Administrative Agent may agree) of provided that if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g), any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids Quote may be delivered submitted by any BankJPMorgan Chase Bank (or its applicable Lending Office) only if JPMorgan Chase Bank (or such applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than 9:15 A.M. on the Quotation Date. Any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrower.
(cii) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Each Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids Quote shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent substantially in the form of Part 3 to Exhibit 2.1 H attached hereto on each Business Day on which there is any change in and shall specify:
(A) the aggregate outstanding proposed date of borrowing and the Interest Period therefor;
(B) the principal amount of the Competitive Bid LoansLoan for which each such offer is being made, setting forth which principal amount shall be at least $5,000,000 (or in increments of $1,000,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any for which a Lender submits Competitive Bid Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested;
(C) in the case of a Competitive Bid Quote for Competitive Bid Loans made on at an Absolute Rate, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Business DayCompetitive Bid Loan (the “Absolute Rate”);
(D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Eurodollar Competitive Rate, the positive or negative margin to be added to or deducted from the Interbank Offered Rate; and
(E) the identity of the quoting Lender. Unless otherwise agreed by the Administrative Agent and the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made. Any subsequent Competitive Bid Quote submitted by a Revolving Credit Lender that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request shall be disregarded by the Borrower unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(d) If The Borrower shall as promptly as practicable after the Company accepts a Portion Competitive Bid Quote is submitted (but in any event not later than 12:00 Noon on (A) in the case of a proposed Competitive Bid Loan for at an Absolute Rate, the Quotation Date (or such other time and date as the Borrower and the Administrative Agent may agree) or (B) in the case of a single Competitive Bid Loan Period at a Eurodollar Competitive Rate, the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a third Business Day prior to the proposed date of borrowing) notify the Administrative Agent and Revolving Credit Lenders of (x) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (y) the respective principal amounts and Absolute Rates or Eurodollar Competitive Rates, as the case may be, so offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote), and (z) its acceptance or nonacceptance of the Competitive Bid Quotes. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $5,000,000 or in increments of $1,000,000 or, for amounts in excess thereof, ); provided that:
(i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request;
(ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or an integral multiple increment of $100,000. If 1,000,000 in excess thereof) but shall not cause the Company accepts limits specified in Section 2.5(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes for any Interest Period may be made only in ascending order of Absolute Rates or Eurodollar Competitive Rates, as the case may be, beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Loan Quote where such Competitive Bid Quote fails to comply with Section 2.5(c)(ii) hereof or Portion offered in any Competitive Bidotherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.5(a) hereof). Any of the conditions above notwithstanding, the Company must Borrower may, in its sole discretion, accept Competitive Bids (and a Competitive Bid Loans and Portions thereby offered) based exclusively upon Quote that does not contain the successively lowest Absolute Rate or Eurodollar Competitive Rates, as the case may be, where acceptance of the Competitive Bid Rates within each Loan Period an no other criteriaQuote containing the lowest Absolute Rate or Eurodollar Competitive Rate, as the case may be, would be less favorable to the Borrower or would cause the principal amount of Outstanding Revolving Credit Obligations to exceed the Total Revolving Credit Commitment. If Competitive Bid Quotes are made by two (2) or more Banks submit Revolving Credit Lenders with the same Absolute Rates or Eurodollar Competitive Bids with identical Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Rates Quotes are accepted for the same Loan related Interest Period and after the Company accepts acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Eurodollar Competitive Rates, as the case may be, offered by any thereofRevolving Credit Lender for such related Interest Period, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the principal amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make in respect of which such Competitive Bid Loan Quotes are accepted shall be allocated by the Borrower among such Lenders as nearly as possible (in amounts of at least $1,000,000 or Portions in increments of $100,000 in excess thereof) in an proportion to the aggregate principal amount of $1,000,000, or for such Competitive Bid Quotes. Determinations by the Borrower of the amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereofand the lowest bid after adjustment as provided in Section 2.5(d)(iii) allocated to such Bank or Banks as shall be conclusive in the Company shall select as necessary to a minimum absence of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banksmanifest error.
(e) Not Any Revolving Credit Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:30 p.m., Milwaukee time, 1:00 P.M. on the relevant borrowing datedate specified for the making of such Loan, each Bank whose Competitive Bid was accepted by make the Company shall make amount of such Loan available to the Agent, Borrower as shall be directed by the Authorized Representative in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, Dollars and in immediately available funds.
(hf) Section 2.2(bFrom time to time, the Borrower shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and maturities thereof.
(g) The Borrower may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A) in the case of a Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 A.M. on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Eurodollar Competitive Rate, by 10:00 A.M. on the date a Competitive Quote is submitted, notify the Borrower of the terms of any Competitive Bid Quote submitted by a Revolving Credit Agreement Lender that is amended in accordance with Section 2.5(c) hereof. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or Eurodollar Competitive Rate, as the case may be, offered by adding an additional subparagraph each Revolving Credit Lender (3identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) theretothe third Business Day prior to the proposed date of borrowing, reading in its entirety the case of Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as follows:the Borrower and the Administrative Agent may agree), the Borrower shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid Quotes which the Borrower requires the Administrative Agent to issue pursuant to this paragraph (g), the Borrower shall pay to the Administrative Agent for the account of the Administrative Agent a bid administration fee of $1,500.
Appears in 3 contracts
Samples: Credit Agreement (Autonation, Inc.), Credit Agreement (Autonation, Inc.), Credit Agreement (Autonation, Inc.)
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 and 1.2 pursuant (a) In addition to borrowings of Revolving Loans, at any time prior to the competitive bid procedures final Termination Date and provided that no Default or Event of Default has occurred and is continuing, the Borrower may, as set forth in the Section 1.10 ("Competitive Bid Loans"), subject to the terms and conditions of Section 1.1 or 1.1 (as the case may be), except as otherwise provided in this Section 1.10. Each Bank may 2.2, request the Lenders to make such offers to make Competitive Bid Loans to the CompanyBorrower in Dollars or in an Alternative Currency. The Lenders may, subject to but shall have no obligation to, make such offers and the terms and conditions hereofBorrower may, in but shall have no obligation to, accept any such amounts as such Bank, in its sole discretion, desires to make to the Companyoffers. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of Competitive Bid Loans made against shall be Absolute Rate Loans. Immediately after giving effect to each Competitive Bid Loan (i) the Aggregate aggregate Dollar Equivalent Amount of Outstandings shall not exceed the then applicable Total Revolving Credit Commitment and (ii) the aggregate Dollar Equivalent Amount of Outstandings in Alternative Currencies shall reduce not exceed the Total Alternative Currency Sublimit. Each Competitive Bid Loan shall be deemed to be a usage of the available amount of each Bank's Lender’s Revolving Credit Commitment pro rata in accordance with its respective amount equal to such Lender’s Applicable Commitment Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this AgreementLoan, notwithstanding any that such Lender may have advanced all, some or none of the terms principal amount of such Competitive Bid Loan. The procedure principal amount of each Competitive Bid Loan shall be due and payable to the Agent for making the benefit of the applicable Competitive Bid Lender in full at the end of the Interest Period with respect to such Competitive Bid Loan, or earlier as specifically provided herein.
(b) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Agent (which shall promptly notify the Lenders) notice (a “Competitive Bid Quote Request”) to be received no later than (i) in the case of Competitive Bid Loans shall be requested in an Alternative Currency, 12:00 noon on the date that is at least three (3) Business Days prior to the date of such proposed borrowing and (ii) in the case of Competitive Bid Loans requested in Dollars, 1:00 P.M. on the Business Day immediately preceding the date of borrowing proposed therein (or such other time and date as follows:
(a) the Borrower and the Agent, with the consent of the Required Lenders, may agree). The Company Borrower may make requests for bids request offers from the Banks Lenders to make Competitive Bid Loans for more than one Interest Period in a single notice; provided that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate borrowing ("a “Competitive Bids"Bid Borrowing”) not later than 9:00 a.m., Milwaukee time, on the proposed borrowing date for of one or more Competitive Bid LoansLoans from the Lenders. Each such request Competitive Bid Quote Request shall be given directly to each substantially in the form of the Banks, shall be given in writing (which may be a facsimile transmission) signed by the Company, Exhibit H hereto and shall specify as to each Competitive Bid Borrowing:
(Ii) the proposed borrowing datedate of such Competitive Bid Borrowing, which shall be a Business Day, ;
(ii) the aggregate amount of the requested such Competitive Bid LoansBorrowing, which shall not be less than at least $1,000,000 or, for amounts 10,000,000 (or the Dollar Equivalent Amount thereof in excess thereof, an any Alternative Currency) or a larger integral multiple of $100,000, 1,000,000 (or the Dollar Equivalent Amount thereof in any Alternative Currency) but shall not cause the limits specified in Section 2.2(a) to be violated;
(iii) the interest period for each Competitive Bid Loan ("Loan Period"), which shall commence on duration of the Interest Period applicable borrowing date and end on a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day of each such Loan Period, and thereto;
(iv) the requested Alternative Currency if more than one Loan Period the Competitive Bid Borrowing is so specifiedin an Alternative Currency; and
(v) if the Borrower would like Competitive Bid Quotes submitted for a proposed Competitive Bid Borrowing in Dollars prior to the date of such Competitive Bid Borrowing, the principal amount allocable time and date on which such Competitive Bid Quotes are to each be submitted; Except as otherwise provided in this Section 2.2(b), no Competitive Bid Quote Request shall be given within five (5) Business Days (or such Loan Periodother number of days as the Borrower and the Agent, with the consent of the Required Lenders, may agree) of any other Competitive Bid Quote Request.
(bi) Each Bank in its sole discretion Lender may (but is not obligated to) submit one or more Competitive Bids Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided, that, if the Borrower’s request under Section 2.2(b) specifies more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the Company Agent not later than 11:00 a.m.(x) in the case of a proposed Competitive Bid Borrowing in an Alternative Currency, Milwaukee time, 9:30 A.M. on the date that is at least two (2) Business Days prior to the date of such proposed borrowing Competitive Bid Borrowing, (y) in the case of a proposed Competitive Bid Borrowing in Dollars, 10:00 A.M. on the date specified of such proposed Competitive Bid Borrowing or such earlier date as the Borrower may set forth in the Competitive Bid Quote Request or (z) such request for other time and date as the Borrower and the Agent, with the consent of the Required Lenders, may agree and the Agent shall promptly notify all Lenders of such other agreed upon time and date (the date on which such Competitive Bids (such 11:00 a.m. time being herein Bid Quotes are to be submitted is called the "Submission Deadline") by facsimile or in writing“Quotation Date”); provided, and thereby irrevocably offer to make all or any part (any such part referred to as a "Portion") of that any Competitive Bid Loan described Quote may be submitted by the Agent (or its Applicable Lending Office) only if the Agent (or such Applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than 9:15 A.M. (or 15 minutes prior to such other agreed upon time) on the Quotation Date in the relevant request for case of Competitive Bids at a fixed rate Bid Loans requested in Dollars and 9:45 A.M. (or 15 minutes prior to such other agreed upon time) on the Quotation Date in the case of interest per annum (each a "Competitive Bid Rate") specified therein, without reference Loans requested in an Alternative Currency. Subject to the LIBOR Rate or other basis for interest ratesexpress provisions of this Agreement, in an aggregate principal amount any Competitive Bid Quote so made shall be irrevocable except with the consent of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple the Agent given at the instruction of $100,000. Multiple Competitive Bids may be delivered by any Bankthe Borrower.
(cii) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Each Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids Quote shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent substantially in the form of Part 3 to Exhibit 2.1 I hereto on each Business Day on which there is any change in and shall specify:
(A) the aggregate outstanding proposed date of borrowing and the Interest Period therefor;
(B) the principal amount of the Competitive Bid LoansLoan for which such offer is being made, setting forth which principal amount shall be at least $10,000,000 (or the Dollar Equivalent Amount thereof in any Alternative Currency) or a larger multiple of $1,000,000 (or the Dollar Equivalent Amount thereof in any Alternative Currency); provided, that the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any for which a Lender submits Competitive Bid Loans made on Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested;
(C) the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Business DayCompetitive Bid Loan (the “Absolute Rate”); and
(D) the identity of the quoting Lender. Unless otherwise agreed by the Agent and the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made.
(d) If The Agent shall, as promptly as practicable after the Company accepts a Portion of a proposed Competitive Bid Loan for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered Quote is submitted but in any Competitive Bid, event not later than 10:30 A.M. (or thirty minutes after such other agreed upon time) on the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon Quotation Date in the successively lowest Bid Rates within each Loan Period an no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount case of Competitive Bid Loans to be so allocated is not sufficient to enable each requested in Dollars and 10:00 A.M. (or thirty minutes after such Bank to make such other agreed upon time) on the Quotation Date in the case of Competitive Bid Loan (or Portions thereof) Loans requested in an Alternative Currency, notify the Borrower of the terms (i) of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.2(c) and (ii) of any Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall be disregarded by the Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote. The Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the for which Competitive Bid of only one of such BanksQuotes have been received and (B) the respective principal amounts and Absolute Rates so offered by each Lender (identifying the Lender that made each Competitive Bid Quote).
(e) Not later than 1:30 p.m., Milwaukee time, 11:00 A.M. (or thirty minutes after the Agent has provided the notice required by Section 2.2(d)) on the relevant borrowing date, each Bank whose Quotation Date for Competitive Bid was Loans requested in Dollars and 11:00 A.M. (or thirty minutes after the Agent has provided the notice required by Section 2.2(d)) on the Quotation Date for Competitive Bid Loans requested in an Alternative Currency, the Borrower shall notify the Agent of its acceptance or nonacceptance of the Competitive Bid Quotes so notified to it pursuant to Section 2.2(d) (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Agent shall promptly notify each affected Lender. In the case of acceptance, such notice shall specify the aggregate principal amount of Competitive Bid Quotes for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request;
(ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $10,000,000 (or the Dollar Equivalent Amount thereof in any Alternative Currency) or a larger multiple of $1,000,000 (or the Dollar Equivalent Amount thereof in any Alternative Currency) but shall not cause the limits specified in Section 2.2(a) to be violated;
(iii) acceptance of Competitive Bid Quotes may be made only in ascending order of Absolute Rates, beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any offer where the Agent has correctly advised the Borrower that such offer fails to comply with Section 2.2(c)(ii) or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.2(a)). If Competitive Bid Quotes are made by two or more Lenders with the same Absolute Rates, for an aggregate principal amount that is greater than the amount in respect of which Competitive Bid Quotes are accepted for the related Interest Period (after taking into account the acceptance of all Competitive Bid Quotes with lower Absolute Rates, if any, offered by any Lender for such related Interest Period), then the principal amount of the Competitive Bid Loans in respect of which such Competitive Bid Quotes are accepted shall be allocated by the Company Borrower among such Lenders as nearly as possible (in amounts of at least $1,000,000 or the Dollar Equivalent Amount thereof in any Alternative Currency) in proportion to the aggregate principal amount of such Competitive Bid Quotes. Determinations by the Borrower of the amounts of Competitive Bid Loans and the lowest bid after adjustment as provided in Section 2.2(e)(iii) shall be conclusive in the absence of manifest error.
(i) In the case of Competitive Bid Loans in Dollars, not later than 1:00 P.M. on the date specified for any Competitive Bid Loan, any Lender whose offer to make such Competitive Bid Loan has been accepted shall make the amount of such Loan available to the Agent, Agent at the Principal Office in Dollars and in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment for account of the applicable borrowing conditions, Borrower. The amount so received by the Agent shall deposit shall, subject to the terms and conditions of this Agreement, be made available to the Borrower on such date by depositing the same, in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, Dollars and in immediately available funds, in an account of the Borrower maintained at the Principal Office or otherwise as shall be directed by an Authorized Representative and reasonably acceptable to the Agent.
(hii) Section 2.2(b) In the case of Competitive Bid Loans in an Alternative Currency, not later than 10:00 A.M. on the date specified for any Competitive Bid Loan, any Lender whose offer to make such Competitive Bid Loan has been accepted shall make the amount of such Loan available to the Borrower at the Funding Bank, to the account of the Credit Agreement is amended applicable Competitive Bid Lender with the Funding Bank. The amount so received by adding an additional subparagraph (3) theretothe Funding Bank shall, reading in its entirety as follows:subject to the terms and conditions of the Loan Documents and upon instruction from the Agent to the Funding Bank on the same day or immediately preceding day but no later than 10:00 A.M., be made available to the Borrower by delivery of the Alternative Currency Equivalent Amount to the Borrower’s account with the Funding Bank.
Appears in 2 contracts
Samples: Credit Agreement (V F Corp), Credit Agreement (V F Corp)
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 In addition to the Revolving Loans and 1.2 Swingline Loans made pursuant to §2 hereof so long as the competitive bid procedures set forth in Borrower maintains ratings from two of the Section 1.10 ("Competitive Bid Loans")three Ratings Agencies of BBB- or Baa3 or higher, as applicable, subject to the terms and conditions of Section 1.1 or 1.1 (as set forth herein, the case Borrower may be), except as otherwise provided in this Section 1.10. Each Bank may make such from time to time request Competitive Bid Loans to the Company, subject in Dollars pursuant to the terms and conditions hereofof this §2.10, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1, provided that (x) at no time shall the aggregate outstanding principal amount of Competitive Bid Loans made against the Aggregate Commitment shall reduce each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding outstanding at any time exceed fifty percent (50%) of the terms of such Competitive Bid Loan. The procedure for making Competitive Bid Loans shall be as follows:
Total Commitments and (a) The Company may make requests for bids from the Banks to make Competitive Bid Loans ("Competitive Bids") not later than 9:00 a.m., Milwaukee time, on the proposed borrowing date for one or more Competitive Bid Loans. Each such request shall be given directly to each of the Banks, shall be given in writing (which may be a facsimile transmission) signed by the Company, and shall specify (I) the proposed borrowing date, which shall be a Business Day, (iiy) the aggregate principal amount of the requested Competitive Bid Loan shall not exceed the amount by which the Commitments at such time exceed the Outstanding Obligations. The Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept such offers in the manner set forth in this §2.10.
(a) The obligation of the Borrower to repay the outstanding principal amount of any and all Competitive Bid Loans, which plus interest at the sum of the Competitive Bid Margin plus the applicable Eurocurrency Rate accrued thereon, shall not be less than $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000, evidenced by this Credit Agreement and by individual loan accounts (iii) the interest period for each “Competitive Bid Loan ("Accounts” and individually, a “Competitive Bid Loan Period")Account”) maintained by the Agent on its books for each of the Lenders, which it being the intention of the parties hereto that the Borrower’s obligations with respect to Competitive Bid Loans are to be evidenced only as stated herein and not by separate promissory notes and shall commence on the applicable borrowing date and end on a specified date thereafter not exceeding 180 days from such borrowing date (up hereby constitute an absolute promise to three (3) Loan Periods may be requested pursuant to each Competitive Bid)pay when due, and the last day of each such Loan Periodwithout notice, and (iv) if more than one Loan Period is so specifieddemand, the principal amount allocable to each such Loan Periodpresentment or setoff.
(b) Each Bank The Borrower irrevocably authorizes the Agent to make or cause to be made, in its sole discretion may connection with a Borrowing Date of any Competitive Bid Loan or at the time of receipt of any payment of principal on the applicable Lender’s Competitive Bid Loan Account an appropriate notation, reflecting the making of the Competitive Bid Loan or the receipt of such payment. The outstanding amount of the Competitive Bid Loans set forth on the Agent’s records, as applicable, shall be prima facie evidence of the principal amount thereof owing and unpaid to such Lender, but the failure to record, or any error in so recording, any such amount shall not limit or otherwise affect the obligations of the Borrower hereunder to make payments of principal of or interest on any Competitive Bid Loan when due.
(but is not obligated toc) submit one or more When the Borrower wishes to request offers to make Competitive Bids Bid Loans under this §2.10, it shall transmit to the Company Agent by facsimile a Competitive Bid Quote Request substantially in the form of Exhibit H hereto (a “Competitive Bid Quote Request”) so as to be received no later than 11:00 a.m. four (4) Business Days prior to the requested Borrowing Date, specifying:
(A) the requested Borrowing Date (which must be a Business Day);
(B) the aggregate amount of such Competitive Bid Loans, which shall be $3,000,000 or a larger multiple of $1,000,000; and
(C) the Type and duration of the Interest Period applicable thereto, subject to the provisions of the definition of Interest Period. The Borrower may request offers to make Competitive Bid Loans for more than one Interest Period and/or more than one Borrowing Date in a single Competitive Bid Quote Request. No new Competitive Bid Quote Request shall be given until the Borrower has notified the Agent of its acceptance or non-acceptance of the Competitive Bid Quotes relating to any outstanding Competitive Bid Quote Request.
(d) Promptly upon receipt of a Competitive Bid Quote Request, the Agent shall send to the Lenders by telecopy or facsimile transmission an Invitation for Competitive Bid Quotes substantially in the form of Exhibit I hereto, which shall constitute an invitation by the Borrower to each Lender to submit Competitive Bid Quotes in accordance with this §2.10.
(e) Each Lender may, but shall be under no obligation to, submit a Competitive Bid Quote containing an offer or offers to make Competitive Bid Loans in response to any Competitive Bid Quote Request. Each Competitive Bid Quote must comply with the requirements of this §2.10(e) and must be submitted to the Agent by facsimile (or electronic mail to the address specified in Exhibit J) transmission not later than 11:00 a.m., Milwaukee time, 10:00 a.m. on the third Business Day prior to the proposed borrowing date Borrowing Date, provided that Competitive Bid Quotes may be submitted by the Agent in its capacity as a Lender only if it submits its Competitive Bid Quote to the Borrower not later than one hour prior to the deadline for the other Lenders. Competitive Bid Loans to be funded pursuant to a Competitive Bid Quote may, as provided in §18(h), be funded by a Lender’s Designated Bank. A Lender making a Competitive Bid Quote may, but shall not be required to, specify in its Competitive Bid Quote whether the related Competitive Bid Loans are intended to be funded by such Lender’s Designated Bank, as provided in §18(h). Subject to the provisions of §§10 and 11 hereof, any Competitive Bid Quote so made shall be irrevocable except with the written consent of the Agent given on the instructions of the Borrower.
(f) Each Competitive Bid Quote shall be in substantially the form of Exhibit J hereto and shall in any case specify:
(i) the proposed Borrowing Date(s);
(ii) the principal amount of the Competitive Bid Loan for which each proposal is being made, which principal amount (w) may be greater than or less than the Commitment of the quoting Lender, (x) must be $1,000,000 or a larger multiple of $500,000, (y) may not exceed the aggregate principal amount of Competitive Bid Loans for which offers were requested and (z) may be subject to an aggregate limitation as to the principal amount of Competitive Bid Loans for which offers being made by such quoting Lender may be accepted;
(iii) the Interest Periods for which Competitive Bid Quotes are being submitted;
(iv) the margin above or below the applicable Eurocurrency Rate (the “Competitive Bid Margin”) offered for each such Competitive Bid Loan, expressed as a percentage (specified to the nearest 1/10,000th of 1%) to be added to or subtracted from such Eurocurrency Rate; and
(v) the identity of the quoting Lender. A Competitive Bid Quote may include up to five (5) separate offers by the quoting Lender with respect to each Interest Period specified in such request the related Invitation for Competitive Bids Bid Quotes.
(such 11:00 a.m. time being herein called g) Any Competitive Bid Quote shall be disregarded if it:
(i) is not substantially in the "Submission Deadline"form of Exhibit J hereto;
(ii) by facsimile contains qualifying, conditional or similar language;
(iii) proposes terms other than or in writing, and thereby irrevocably offer addition to make all or any part those set forth in the applicable Invitation for Competitive Bid Quotes; or
(any such part referred to as a "Portion"iv) arrives after the time set forth in §2.10 (e) hereof.
(h) The Agent shall promptly notify the Borrower of the terms (a) of any Competitive Bid Loan described Quote submitted by a Lender that is in the relevant request for Competitive Bids at a fixed rate of interest per annum accordance with §2.10(e) and (each a "Bid Rate"b) specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids may be delivered by any Bank.
(c) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute Quote that amends, modifies or is otherwise inconsistent with a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each previous Competitive Bid LoanQuote submitted by such Lender with respect to the same Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall be disregarded by the Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote and was received by the Agent within the time period required in §2.10(e) for receipt of Competitive Bid Quotes. The Company will give written Agent’s notice to the Agent in the form of Part 3 to Exhibit 2.1 hereto on each Business Day on which there is any change in Borrower shall specify (i) the aggregate outstanding principal amount of Competitive Bid LoansLoans for which offers have been received for each Interest Period specified in the related Competitive Bid Quote Request, setting forth and (ii) the respective principal amounts and Competitive Bid Margins so offered, and the identity of the respective Lenders submitting such offers.
(i) Not later than 4:00 p.m. on the third Business Day prior to the proposed Borrowing Date, the Borrower shall notify the Agent of its acceptance or non-acceptance of each Competitive Bid Quote in substantially the form of Exhibit K hereto. The Borrower may accept any Competitive Bid Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Competitive Bid Loan may exceed the applicable amount set forth in the related Competitive Bid Quote Request so long as the Borrower’s written notice of acceptance expressly states that the Borrower has accepted quotes in excess of the requested amount;
(ii) acceptance of offers may only be generally made on the basis of ascending Competitive Bid Margins with the same terms, and
(iii) the Borrower may not accept any offer that is described in §2.10(g) or that otherwise fails to comply with the requirements of this Agreement. The Agent shall promptly notify each Lender which submitted a Competitive Bid Quote of the Borrower’s acceptance or non-acceptance thereof. A Lender who is notified that it has been selected to make a Competitive Bid Loan may designate its Designated Bank (if any) to fund such Competitive Bid Loan on its behalf, as described in §18(h). Any Designated Bank which funds a Competitive Bid Loan shall on and after the time of such funding become the obligee in respect of such Competitive Bid Loan and be entitled to receive payment thereof when due. At the request of any Lender which submitted a Competitive Bid Quote, the Agent will promptly notify all Lenders which submitted Competitive Bid Quotes of the aggregate principal amount of, and the range of Competitive Bid Margins of, the accepted Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on such Business Dayfor each requested Interest Period.
(dj) If the Company accepts a Portion of a proposed Competitive Bid Loan for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period an no other criteria. If offers are made by two (2) or more Banks submit Lenders with the same Competitive Bids with identical Bid Rates Margin for a greater aggregate principal amount than the amount in respect of which offers are accepted for the same Loan Period and the Company accepts any thereofrelated Interest Period, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the principal amount of Competitive Bid Loans to be so allocated is not sufficient to enable each in respect of which such Bank to make offers at such Competitive Bid Loan Margin are accepted shall be allocated by the Borrower among such Lenders as nearly as possible (or Portions thereof) in an aggregate principal amount of such multiples, not less than $1,000,000, or for as the Borrower may deem appropriate) in proportion to the aggregate principal amounts in excess thereof, an integral multiple of $100,000, such offers. Determination by the Company shall round Agent of the amounts of Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as shall be conclusive in the Company shall select as necessary to a minimum absence of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banksmanifest error.
(ek) If, on or prior to the Borrowing Date of any Competitive Bid Loan, the Total Commitment has not terminated in full and if, on such Borrowing Date, the applicable conditions of §§10 and 11 hereof are satisfied, and the Agent shall have received a Compliance Certificate, the Lender or Lenders whose offers the Borrower has accepted will fund each Competitive Bid Loan so accepted. Not later than 1:30 p.m., Milwaukee time, 1:00 p.m. on the relevant borrowing datesuch Borrowing Date, each such Lender or Lenders or Designated Bank whose Competitive Bid was accepted by the Company shall will make available to the Agent, at the Agent’s Head Office, in immediately available funds, the proceeds amount of such Bank's Lender’s Competitive Bid Loan(s)Loans. Upon fulfillment receipt from each such Lender of the applicable borrowing conditionssuch amount, the Agent shall deposit in will make available to the Company's account maintained with Borrower the aggregate amount of such Loans made available to the Agent or as by the Company may otherwise direct in writing Lenders.
(l) The principal of each Competitive Bid Loan shall become absolutely due and payable by the Borrower on the last day of the Interest Period relating thereto, and the Borrower hereby absolutely and unconditionally promises to pay to the Agent for the account of the relevant borrowing date Lenders at or before 1:00 p.m. on the proceeds last day of the Interest Periods relating thereto the principal amount of all such Competitive Bid Loans, in immediately available funds.
(h) Section 2.2(b) plus interest thereon at the sum of the applicable Competitive Bid Margin specified in the applicable Competitive Bid Quotes plus the applicable Eurocurrency Rate. Interest on the Competitive Bid Loans shall be payable in arrears on each Interest Payment Date. Subject to the terms of this Credit Agreement is amended by adding an additional subparagraph (3) theretoAgreement, reading in its entirety as follows:the Borrower may make Competitive Bid Quote Requests with respect to new borrowings of any amounts so repaid prior to the Maturity Date. The provisions of §2.6 shall not apply to Competitive Bid Loans.
Appears in 2 contracts
Samples: Credit Agreement (Liberty Property Limited Partnership), Credit Agreement (Liberty Property Limited Partnership)
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 (a) In addition to Revolving Credit Loans, at any time after the termination of the Non-Extended Revolving Credit Commitments and 1.2 pursuant to provided no Default or Event of Default exists hereunder, the competitive bid procedures Borrower may, as set forth in the Section 1.10 ("Competitive Bid Loans"), subject to the terms and conditions of Section 1.1 or 1.1 (as the case may be), except as otherwise provided in this Section 1.10. Each Bank may 2.5, request the Revolving Credit Lenders to make such offers to make Competitive Bid Loans to the CompanyBorrower in Dollars. The Revolving Credit Lenders may, subject to but shall have no obligation to, make such offers and the terms Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section 2.5. There may be no more than ten (10) Interest Periods, and conditions hereofno more than one (1) one-week Interest Periods, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of for all Revolving Credit Loans and Competitive Bid Loans made against outstanding at the Aggregate Commitment shall reduce same time (for which purpose Interest Periods for each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Eurodollar Revolving Credit Loan and each Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any of the terms of such Competitive Bid Loandeemed to be different Interest Periods even if they are coterminous). The procedure for making aggregate principal amount of all Outstanding Revolving Credit Obligations shall not exceed the Total Revolving Credit Commitment at any time. The aggregate principal amount of all outstanding Competitive Bid Loans shall be as follows:not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any time.
(ab) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative Agent and the Revolving Credit Lenders notice (a “Competitive Bid Quote Request”) to be received no later than 12:00 Noon on (A) the fourth Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree). The Company Borrower may make requests for bids from the Banks request offers to make Competitive Bid Loans for up to three ("Competitive Bids"3) not later than 9:00 a.m., Milwaukee time, on different Interest Periods in a single notice; provided that the proposed borrowing date request for one or more each separate Interest Period shall be deemed to be a separate Competitive Bid LoansQuote Request for a separate borrowing (a “Competitive Bid Borrowing”) and there shall not be outstanding at any one time more than four (4) Competitive Bid Borrowings. Each such request Competitive Bid Quote Request shall be given directly to each substantially in the form of the Banks, shall be given in writing (which may be a facsimile transmission) signed by the Company, Exhibit G attached hereto and shall specify as to each Competitive Bid Borrowing:
(Ii) the proposed borrowing datedate of such borrowing, which shall be a Business Day, ;
(ii) the aggregate amount of the requested such Competitive Bid LoansBorrowing, which shall not be less than at least $10,000,000 (or in increments of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000, ) but shall not cause the limits specified in Section 2.5(a) hereof to be violated;
(iii) the interest period for each Competitive Bid Loan ("Loan Period"), which shall commence on duration of the Interest Period applicable borrowing date and end on a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day of each such Loan Period, and thereto;
(iv) if more than one Loan whether the Competitive Bid Quote Request for a particular Interest Period is so specified, seeking quotes for Competitive Bid Loans at the principal amount allocable to each such Loan Period.Absolute Rate or the Eurodollar Competitive Rate;
(bv) Each Bank in its sole discretion may whether the Borrower shall have the right to prepay a requested Competitive Bid Loan; and
(but vi) the date on which the Competitive Bid Quotes are to be submitted if it is not obligated to) submit one or more Competitive Bids to the Company not later than 11:00 a.m., Milwaukee time, on before the proposed date of borrowing (the date specified in such request for Competitive Bids (such 11:00 a.m. time being herein called the "Submission Deadline") by facsimile or in writing, and thereby irrevocably offer to make all or any part (any such part referred to as a "Portion") of any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids may be delivered by any Bank.
(c) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any on which such Competitive Bid (or any Portion thereof) not later than 12:00 noon on Quotes are to be submitted is called the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day“Quotation Date”). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such dayExcept as otherwise provided in this Section 2.5(b), all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent in the form of Part 3 to Exhibit 2.1 hereto on each Business Day on which there is any change in the aggregate outstanding principal amount of Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on such Business Day.
(d) If the Company accepts a Portion of a proposed Competitive Bid Loan for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period an no other criteria. If more than two (2) Competitive Bid Quote Requests shall be given within five (5) Business Days (or more Banks submit Competitive Bids with identical Bid Rates for such other number of days as the same Loan Period Borrower and the Company accepts Administrative Agent may agree) of any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of other Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make such Competitive Bid Loan (or Portions thereof) in an aggregate principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such BanksQuote Request.
(e) Not later than 1:30 p.m., Milwaukee time, on the relevant borrowing date, each Bank whose Competitive Bid was accepted by the Company shall make available to the Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, in immediately available funds.
(h) Section 2.2(b) of the Credit Agreement is amended by adding an additional subparagraph (3) thereto, reading in its entirety as follows:
Appears in 2 contracts
Samples: Five Year Credit Agreement (Autonation, Inc.), Five Year Credit Agreement (Autonation, Inc.)
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 (a) Subject to and 1.2 pursuant to the competitive bid procedures set forth in the Section 1.10 ("Competitive Bid Loans"), subject to upon the terms and conditions herein set forth, each Bank severally agrees that the Company may incur a Competitive Bid Loan pursuant to a Notice of Section 1.1 or 1.1 Competitive Bid Borrowing from time to time on and after the Effective Date and prior to the date which is the Business Day preceding the date which is 30 days prior to the Termination Date, provided that the Total Outstanding Amount, after giving effect to the Loan so requested and all other Loans then requested which have not yet been funded, will not exceed the Total Commitment then in effect. Within the foregoing limits and subject to the conditions set forth in this Agreement, Competitive Bid Loans may be repaid and reborrowed in accordance with the provisions hereof. Competitive Bid Loans made on any Funding Date shall be in Dollars in an aggregate minimum amount of $10,000,000 and in integral multiples of $1,000,000 in excess of such amount.
(as b) Whenever the Company desires to incur a Competitive Bid Loan, it shall deliver to the Administrative Agent and each Bank a Notice of Competitive Bid Borrowing, such notice to specify in each case may be(A) the date of the proposed Competitive Bid Loan(s), except (B) the aggregate amount of the proposed Competitive Bid Loan(s), (C) the maturity date for repayment of each Competitive Bid Loan to be made as otherwise provided in this Section 1.10. Each Bank may make part of such Competitive Bid Loans (each of which maturity dates may not be later than the Business Day prior to the CompanyTermination Date), subject (D) the Account of the Company for such Loan(s), (E) the interest payment date or dates relating thereto, (F) whether the Competitive Bid Loan(s) are to be Competitive Bid Absolute Rate Loans or Competitive Bid LIBOR Loans, (G) the aggregate principal amount of Loans outstanding after giving effect to the proposed Competitive Bid Loan(s) and all other Loans then requested which have not yet been funded and (H) any other terms and conditions hereofto be applicable to such Competitive Bid Loan(s). A Notice of Competitive Bid Borrowing must be received no later than 11:00 A.M. (New York City time) on (i) the fifth Business Day prior to the date of the Borrowing proposed therein, in such amounts as such Bankthe case of a LIBOR Auction or (ii) the Business Day next preceding the date of Borrowing proposed therein, in the case of an Absolute Rate Auction. No Notice of Competitive Bid Borrowing shall be given earlier than three Business Days subsequent to the making of the last Competitive Bid Loan.
(c) Each Bank shall, if, in its sole discretion, desires it elects to do so, irrevocably offer to make to the Company. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of Competitive Bid Loans made against the Aggregate Commitment shall reduce each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any of the terms of such Competitive Bid Loan. The procedure for making Competitive Bid Loans shall be as follows:
(a) The Company may make requests for bids from the Banks to make Competitive Bid Loans ("Competitive Bids") not later than 9:00 a.m., Milwaukee time, on the proposed borrowing date for one or more Competitive Bid Loans. Each Loans to the Company as part of such request shall be given directly to each of the Banks, shall be given in writing (which may be a facsimile transmissionproposed Competitive Bid Loan(s) signed by notifying the Company, not later than (i) 2:00 P.M. (New York City time) on the fourth Business Day prior to the proposed date of Borrowing, in the case of a LIBOR Auction and shall specify (Iii) 10:00 A.M. (New York City time) on the proposed date of Borrowing, in the case of an Absolute Rate Auction (each such date being hereinafter referred to as a “Reply Date”), of (i) the minimum amount and maximum amount of each Competitive Bid Loan which such Bank would be willing to make as part of such proposed borrowing dateCompetitive Bid Loan(s) (which amounts may, which subject to the provisions of Section 2.01(a), exceed such Bank’s Commitment); provided that the minimum amount of any Bank’s bid shall be at least $5,000,000 (or, in the case of a Business DayCompetitive Bid Loan denominated in an Alternative Currency, the Currency Equivalent thereof in such Alternative Currency), (ii) in the aggregate amount case of a LIBOR Auction, the requested margin above or below the applicable Eurodollar Rate (the “Bid Margin”) offered for each such Competitive Bid LoansLoan, which shall not expressed as a percentage (specified to the nearest 1/10,000th of 1%) to be less than $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000, added to or subtracted from such base rate and (iii) in the interest period for each Competitive Bid Loan ("Loan Period"), which shall commence on the applicable borrowing date and end on a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day case of each such Loan Period, and (iv) if more than one Loan Period is so specifiedan Absolute Rate Auction, the principal amount allocable to each such Loan Period.
(b) Each Bank in its sole discretion may (but is not obligated to) submit one or more Competitive Bids to the Company not later than 11:00 a.m., Milwaukee time, on the proposed borrowing date specified in such request for Competitive Bids (such 11:00 a.m. time being herein called the "Submission Deadline") by facsimile or in writing, and thereby irrevocably offer to make all or any part (any such part referred to as a "Portion") of any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate nearest 1/10,000th of 1%) (the “Absolute Rate”) offered for each such Competitive Bid Loan. If any Bank shall not notify the Company, before 2:00 P.M. or other basis for interest rates10:00 a.m. (New York City time), in as the case may be, on the Reply Date of its offer of a Competitive Bid Loan, such Bank shall be deemed not to be making an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple offer with respect to such Competitive Bids may be delivered by any BankBid Loan.
(cd) The Company shall, in its sole discretion but subject turn, before 11:00 A.M. (New York City time) on (i) the third Business Day prior to paragraph the proposed date of Borrowing, in the case of a LIBOR Auction or (dii) belowthe Reply Date, irrevocably accept or reject any in the case of an Absolute Rate Auction either
(A) cancel such Competitive Bid Loan by giving the Administrative Agent and each Bank notice to that effect (whereupon such Competitive Bid Loan will not be made), or
(B) accept one or more of the offers made by any Portion thereof) not later than 12:00 noon on the proposed borrowing date Bank or Banks pursuant to Section 2.02(c), in its sole discretion, by giving notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to Administrative Agent and such Bank of the amount of each Competitive Bid Loan (which amount shall be equal to or greater than the minimum amount, and equal to or less than the Agent the same day). If a Bank fails maximum amount, notified to receive notice from the Company of its acceptance by such Bank or rejection of any Banks for such Competitive Bids Bid Loan pursuant to Section 2.02(c)) to be made by such Bank at or prior to 12:00 noon on such day, all as part of such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the CompanyLoan, and shall specify reject any remaining offers made by Banks pursuant to Section 2.02(c) above by giving the amount, maturity date Administrative Agent and Bid Rate for such Bank notice to that effect.
(e) On the Funding Date of each Competitive Bid Loan. The Company , each Bank required to participate therein will give written notice to the Agent in the form make available its share of Part 3 to Exhibit 2.1 hereto on each Business Day on which there is any change in the aggregate outstanding principal amount of Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on such Business Day.
(d) If the Company accepts a Portion of a proposed Competitive Bid Loan for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period an no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make such Competitive Bid Loan (or Portions thereofas specified in Section 2.02(d)) by causing funds in an aggregate principal such amount to be credited to the Account of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans in same day funds not later than 12:00 Noon (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such BanksNew York City time).
(ef) Not later than 1:30 p.m., Milwaukee time, Each Competitive Bid Loan shall be payable on the relevant borrowing date, each Bank whose maturity date specified in the Notice of Competitive Bid was accepted by the Company shall make available Borrowing relating to the Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, in immediately available fundsLoan.
(h) Section 2.2(b) of the Credit Agreement is amended by adding an additional subparagraph (3) thereto, reading in its entirety as follows:
Appears in 1 contract
Samples: Credit Agreement (Textron Inc)
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 (a) Subject to and 1.2 pursuant to the competitive bid procedures set forth in the Section 1.10 ("Competitive Bid Loans"), subject to upon the terms and conditions and in reliance upon the representations and warranties of Section 1.1 the Borrower herein set forth, each Bank severally and not jointly agrees that the Borrower may incur a loan or 1.1 loans (as the case may be), except as otherwise provided in this Section 1.10. Each Bank may make such each a “Competitive Bid Loans to the Company, subject to the terms Loan” and conditions hereof, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1collectively, the aggregate outstanding amount of Competitive Bid Loans made against the Aggregate Commitment shall reduce each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such “Competitive Bid Loans. Any ”) pursuant to a Competitive Bid Loan made under Borrowing from time to time on and after the Demand Line shall be due Effective Date and payable upon demand in accordance with prior to the terms of this AgreementCommitment Termination Date, notwithstanding any or, if earlier, the date of the terms termination or expiration of such Competitive Bid Loan. The procedure for making the Commitments; provided that no Competitive Bid Loans shall be as follows:
(a) The Company may make requests for bids from made hereunder if, after giving effect to any Competitive Bid Borrowing and the Banks use of the proceeds thereof, the aggregate principal amount of Loans outstanding at any time would exceed the Total Commitment. Within the foregoing limits and subject to make the conditions set out in Section 5, Competitive Bid Loans may be repaid and reborrowed in accordance with the provisions hereof. No Competitive Bid Loan shall be entitled to be converted into any other type of Loan.
("b) Whenever the Borrower desires to make a Borrowing of Competitive Bids") Bid Loans hereunder, it shall give the Administrative Agent, not later than 9:00 a.m., Milwaukee 11:00 a.m. (New York City time, ) on the fourth Business Day prior to the date of such proposed borrowing date for one or more Competitive Bid Loans. Each Borrowing, a written notice in the form of Exhibit A-2 hereto (a “Notice of Competitive Bid Borrowing”), such request shall be given directly notice to specify in each of the Banks, shall be given in writing case (which may be a facsimile transmission) signed by the Company, and shall specify (Ii) the proposed borrowing date, date (which shall be a Business Day, (ii) and the aggregate amount of the requested proposed Competitive Bid Loans, Borrowing (which shall not be less than $1,000,000 or100,000,000 and, for amounts if greater, shall be in excess thereof, an integral multiple of $100,0005,000,000), (ii) the Interest Period and maturity date for repayment of each Competitive Bid Loan to be made as part of such Competitive Bid Borrowing (which maturity date shall be the last day of the Interest Period relating thereto, and may not be later than the Commitment Termination Date), (iii) the interest period for payment date or dates relating thereto, (iv) whether the proposed Competitive Bid Borrowing is to be an Absolute Rate Borrowing or a Spread Borrowing, and if a Spread Borrowing, the Interest Rate Basis, and (v) any other terms to be applicable to such Competitive Bid Borrowing. Promptly after receipt of a Notice of Competitive Bid Borrowing, the Administrative Agent shall provide each Bank with a copy thereof.
(c) Each Bank shall, if in its sole discretion it elects to do so, irrevocably offer to make one or more Competitive Bid Loans to the Borrower as part of such proposed Competitive Bid Borrowing at a rate or rates of interest specified by such Bank in its sole discretion and determined by such Bank independently of each other Bank, by notifying the Administrative Agent (which shall give prompt notice thereof to the Borrower), before 10:00 a.m. (New York City time) on the date (the “Reply Date”) which is (x) in the case of an Absolute Rate Borrowing, the Business Day before and (y) in the case of a Spread Borrowing, three Business Days before, the date of such proposed Competitive Bid Borrowing, of the minimum amount and maximum amount of each Competitive Bid Loan which such Bank would make as part of such proposed Competitive Bid Borrowing (which amounts may, subject to the proviso to the first sentence of Section 2.3(a), exceed such Bank’s Commitment), the rate or rates of interest therefor and such Bank’s Lending Office with respect to such Competitive Bid Loan; provided that if the Administrative Agent in its capacity as a Bank shall, in its sole discretion, elect to make any such offer, it shall notify the Borrower of such offer before 9:30 a.m. (New York City time) on the Reply Date. If any Bank shall elect not to make such an offer, such Bank shall so notify the Administrative Agent, before 10:00 a.m. (New York City time) on the Reply Date, and such Bank shall not be obligated to, and shall not, make any Competitive Bid Loan as part of such Competitive Bid Borrowing; provided that the failure by any Bank to give such notice shall not cause such Bank to be obligated to make any Competitive Bid Loan as part of such proposed Competitive Bid Borrowing.
(d) The Borrower shall, in turn, before (x) in the case of Absolute Rate Borrowings, Noon (New York City time) or (y) in the case of Spread Borrowings, 1:00 p.m. (New York City time) on the Reply Date, either
(1) cancel such Competitive Bid Borrowing by giving the Administrative Agent notice to that effect, or
(2) accept one or more of the offers made by any Bank or Banks pursuant to clause (c) above by giving notice (in writing or by telephone promptly confirmed in writing) to the Administrative Agent of the amount of each Competitive Bid Loan ("Loan Period")which amount shall be equal to or greater than the minimum amount, which shall commence and equal to or less than the maximum amount, notified to the Borrower by the Administrative Agent on the applicable borrowing date and end on a specified date thereafter not exceeding 180 days from behalf of such borrowing date (up to three (3) Loan Periods may be requested Bank for such Competitive Bid Borrowing pursuant to each Competitive Bid), and the last day of each such Loan Period, and (iv) if more than one Loan Period is so specified, the principal amount allocable to each such Loan Period.
(b) Each Bank in its sole discretion may (but is not obligated to) submit one or more Competitive Bids to the Company not later than 11:00 a.m., Milwaukee time, on the proposed borrowing date specified in such request for Competitive Bids (such 11:00 a.m. time being herein called the "Submission Deadline") by facsimile or in writing, and thereby irrevocably offer to make all or any part (any such part referred to as a "Portion") of any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids may be delivered by any Bank.
clause (c) The Company shall, in its sole discretion but subject above) to paragraph (d) below, irrevocably accept or reject any be made by each Bank as part of such Competitive Bid Borrowing, and reject any remaining offers made by Banks pursuant to clause (or any Portion thereofc) not later than 12:00 noon above by giving the Administrative Agent notice to that effect; provided that acceptance of offers may only be made on the proposed borrowing date basis of ascending Absolute Rates (in the case of an Absolute Rate Borrowing) or Spreads (in the case of a Spread Borrowing), in each case commencing with the lowest rate so offered; provided further, however, if offers are made by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent two or more Banks at the same day). If a Bank fails to receive notice from the Company rate and acceptance of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute equal offers would result in a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent in the form of Part 3 to Exhibit 2.1 hereto on each Business Day on which there is any change in the aggregate outstanding greater principal amount of Competitive Bid Loans, setting forth Loans being accepted than the aggregate principal amount of requested by the Borrower, the Borrower shall have the right in its sole discretion to accept one or more such equal offers in their entirety and reject the other equal offer or offers or to allocate acceptance among all Competitive Bid Loans then outstanding after such equal offers (but giving effect to any Competitive Bid Loans made on such Business Day.
(d) If the Company accepts a Portion of a proposed Competitive Bid Loan minimum and maximum amounts specified for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period an no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank offer pursuant to make such Competitive Bid Loan clause (or Portions thereofc) in an aggregate principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banksabove).
(e) Not later than 1:30 p.m.If the Borrower notifies the Administrative Agent that such Competitive Bid Borrowing is cancelled pursuant to clause (d)(1) above, Milwaukee timethe Administrative Agent shall give prompt notice thereof to the Banks and such Competitive Bid Borrowing shall not be made.
(f) If the Borrower accepts one or more of the offers made by any Bank or Banks pursuant to clause (d)(2) above, on the relevant borrowing date, Administrative Agent shall in turn promptly notify (x) each Bank whose Competitive Bid was accepted by the Company shall make available to the Agentthat has made an offer as described in clause (c) above, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds and aggregate amount of such Competitive Bid LoansBorrowing and whether or not any offer or offers made by such Bank pursuant to clause (c) above have been accepted by the Borrower and (y) each Bank that is to make a Competitive Bid Loan as part of such Competitive Bid Borrowing, in immediately available fundsof the amount of each Competitive Bid Loan to be made by such Bank as part of such Competitive Bid Borrowing.
(hg) Section 2.2(b) The Borrower agrees to pay the Administrative Agent for its own account a competitive bid auction fee, payable on the date of each Competitive Bid Borrowing with respect to each Competitive Bid Loan, in the Credit Agreement is amended by adding an additional subparagraph amounts set forth in the letter agreement, dated May 13, 2004 (3) theretothe “Administrative Agent Fee Letter”), reading in its entirety as follows:between Citigroup Global Markets Inc., the Administrative Agent and the Borrower.
Appears in 1 contract
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 and 1.2 pursuant (a) In addition to Revolving Credit Loans, at any time prior to the competitive bid procedures Revolving Credit Termination Date and provided no Default or Event of Default exists hereunder, the Borrowers may, as set forth in the Section 1.10 ("Competitive Bid Loans"), subject to the terms and conditions of Section 1.1 or 1.1 (as the case may be), except as otherwise provided in this Section 1.10. Each Bank may 2.02, request the Lenders to make such offers to make Competitive Bid Loans to the CompanyBorrowers in Dollars. The Lenders may, subject to but shall have no obligation to, make such offers and the terms Borrowers may, but shall have no obligation to, accept any such offers in the manner set forth in this Section 2.02. There may be no more than twenty (20) different Interest Periods, plus one (1) one week Interest Period for both Revolving Credit Loans and conditions hereof, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of Competitive Bid Loans made against outstanding at the Aggregate Commitment shall reduce same time (for which purpose Interest Periods for each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Eurodollar Loan and each Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any of the terms of such Competitive Bid Loandeemed to be different Interest Periods even if they are coterminous). The procedure for making aggregate principal amount of all Outstanding Credit Obligations, shall not exceed the Total Revolving Credit Commitment at any time. The aggregate principal amount of all outstanding Competitive Bid Loans shall be as follows:not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any time.
(ab) When either Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative Agent and the Lenders notice (a "Competitive Bid Quote Request") to be received no later than 11:00 a.m. Charlotte, North Carolina time on (A) the fourth Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrowers and the Administrative Agent, with the consent of the Required Lenders, may agree). The Company Borrowers may make requests for bids from the Banks request offers to make Competitive Bid Loans for up to three (3) different Interest Periods in a single notice; provided that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate borrowing (a "Competitive BidsBid Borrowing") and there shall not later be outstanding at any one time more than 9:00 a.m., Milwaukee time, on the proposed borrowing date for one or more six (6) Competitive Bid LoansBorrowings. Each such request Competitive Bid Quote Request shall be given directly to each substantially in the form of the Banks, shall be given in writing (which may be a facsimile transmission) signed Exhibit I attached hereto and incorporated herein by the Company, reference and shall specify as to each Competitive Bid Borrowing:
(Ii) the proposed borrowing datedate of such borrowing, which shall be a Business Day, ;
(ii) the aggregate amount of the requested such Competitive Bid LoansBorrowing, which shall not be less than at least $10,000,000 (or in increments of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000, ) but shall not cause the limits specified in Section 2.02
(a) hereof to be violated;
(iii) the interest period for each Competitive Bid Loan ("Loan Period"), which shall commence on duration of the Interest Period applicable borrowing date and end on a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day of each such Loan Period, and thereto;
(iv) whether the Competitive Bid Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Eurodollar Competitive Rate;
(v) whether a Borrower shall have the right to prepay a requested Competitive Bid Loan; and
(vi) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the "Quotation Date"). Except as otherwise provided in this Section 2.02(b), no more than one Loan Period is so specifiedtwo (2) Competitive Bid Quote Requests shall be given within five (5) Business Days (or such other number of days as the Borrowers and the Administrative Agent, with the principal amount allocable to each such Loan Periodconsent of the Required Lenders, may agree) of any other Competitive Bid Quote Request.
(bi) Each Bank in its sole discretion Lender may (but is not obligated to) submit one or more Competitive Bids Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if the Borrowers' request under Section 2.02(b) hereof specified more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the Company Borrowers not later than 11:00 a.m.9:30 a.m. Charlotte, Milwaukee time, North Carolina time on (A) the third Business Day prior to the proposed borrowing date specified of borrowing, in such request the case of a Competitive Bid Quote Request for Competitive Bids Bid Loans at the Eurodollar Competitive Rate or (such 11:00 a.m. time being herein called B) the "Submission Deadline") by facsimile or Quotation Date, in writingthe case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, and thereby irrevocably offer to make all or any part (in any such part referred to case, such other time and date as a "Portion"the Borrowers and the Administrative Agent, with the consent of the Required Lenders, may agree) of provided that if NationsBank is receiving quotes as provided in Section 2.02(g), any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids Quote may be delivered submitted by NationsBank (or its applicable Lending Office) only if NationsBank (or such applicable Lending Office) notifies the Borrowers of the terms of the offer contained therein not later than 9:15 a.m. Charlotte, North Carolina time on the Quotation Date. Subject to Articles IV, V and IX hereof, any BankCompetitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrowers.
(cii) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Each Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids Quote shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent substantially in the form of Part 3 to Exhibit 2.1 J attached hereto on each Business Day on which there is any change in and incorporated herein by reference and shall specify:
(A) the aggregate outstanding proposed date of borrowing and the Interest Period therefor;
(B) the principal amount of the Competitive Bid LoansLoan for which each such offer is being made, setting forth which principal amount shall be at least $5,000,000 (or in increments of $1,000,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any for which a Lender submits Competitive Bid Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested;
(C) in the case of a Competitive Bid Quote for Competitive Bid Loans made on at an Absolute Rate, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Business DayCompetitive Bid Loan (the "Absolute Rate");
(D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Eurodollar Competitive Rate, the positive or negative margin to be added to or deducted from the Interbank Offered Rate; and
(E) the identity of the quoting Lender. Unless otherwise agreed by the Administrative Agent and the Borrowers, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrowers of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made. Any subsequent Competitive Bid Quote submitted by a Lender that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request shall be disregarded by the Borrowers unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(d) If The Borrowers shall (A) in the Company accepts a Portion case of a proposed Competitive Bid Loan for at an Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 10:30 a.m. Charlotte, North Carolina time on the Quotation Date (or such other time and date as the Borrowers and the Administrative Agent, with the consent of the Required Lenders, may agree) or (B) in the case of a single Competitive Bid Loan Period at a Eurodollar Competitive Rate, the Bid Rate provided therefor in a Bank's Competitive Bidthird Business Day prior to the proposed date of borrowing), such Portion shall be in a notify the Administrative Agent and Lenders of (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (B) the respective principal amounts and Absolute Rates or Eurodollar Competitive Rates, as the case may be, so offered by each Lender (identifying the Lender that made each Competitive Bid Quote), and (C) its acceptance or nonacceptance of the Competitive Bid Quotes. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrowers may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $5,000,000 or in increments of $1,000,000 or, for amounts in excess thereof, ); provided that:
(i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request;
(ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or an integral multiple increment of $100,000. If 1,000,000 in excess thereof) but shall not cause the Company accepts limits specified in Section 2.02
(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes for any Interest Period may be made only in ascending order of Absolute Rates or Eurodollar Competitive Rates, as the case may be, beginning with the lowest rate so offered; and
(iv) the Borrowers may not accept any Competitive Bid Loan Quote where such Competitive Bid Quote fails to comply with Section 2.02(c)(ii) hereof or Portion offered in any Competitive Bidotherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.02(a) hereof). Any of the conditions above notwithstanding, the Company must Borrowers may, in their sole discretion, accept Competitive Bids (and a Competitive Bid Loans and Portions thereby offered) based exclusively upon Quote that does not contain the successively lowest Absolute Rate or Eurodollar Competitive Rates, as the case may be, where acceptance of the Competitive Bid Rates within each Loan Period an no other criteriaQuote containing the lowest Absolute Rate or Eurodollar Competitive Rate, as the case may be, would cause the principal amount of Outstanding Credit Obligations of a Lender or Lenders offering the lowest Absolute Rate or Eurodollar Competitive Rate, as the case may be, to exceed the Total Revolving Credit Commitment. If Competitive Bid Quotes are made by two (2) or more Banks submit Lenders with the same Absolute Rates or Eurodollar Competitive Bids with identical Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Rates Quotes are accepted for the same Loan related Interest Period and after the Company accepts acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Eurodollar Competitive Rates, as the case may be, offered by any thereofLender for such related Interest Period, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the principal amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make in respect of which such Competitive Bid Loan Quotes are accepted shall be allocated by the Borrowers among such Lenders as nearly as possible (in amounts of at least $1,000,000 or Portions in increments of $100,000 in excess thereof) in an proportion to the aggregate principal amount of $1,000,000, or for such Competitive Bid Quotes. Determinations by the Borrowers of the amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereofand the lowest bid after adjustment as provided in Section 2.02(d)(iii) allocated to such Bank or Banks as shall be conclusive in the Company shall select as necessary to a minimum absence of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banksmanifest error.
(e) Not Any Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:30 p.m.1:00 p.m. Charlotte, Milwaukee time, North Carolina time on the relevant borrowing datedate specified for the making of such Loan, each Bank whose Competitive Bid was accepted by make the Company shall make amount of such Loan available to the Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of applicable Borrower at the applicable borrowing conditions, Borrower's Account or otherwise as shall be directed by the Agent shall deposit Authorized Representative in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, Dollars and in immediately available funds.
(hf) Section 2.2(bFrom time to time, the Borrowers shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and maturities thereof.
(g) The Borrowers may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A) in the case of a Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 a.m., Charlotte, North Carolina time on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Eurodollar Competitive Rate, by 10:00 a.m. Charlotte, North Carolina time on the date a Competitive Quote is submitted, notify the Borrowers of the Credit Agreement terms of any Competitive Bid Quote submitted by a Lender that is amended in accordance with Section 2.02(c) hereof. The Administrative Agent's notice to the Borrowers shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or Eurodollar Competitive Rate, as the case may be, offered by adding an additional subparagraph each Lender (3identifying the Lender that made each Competitive Bid Quote). Not later than 10:30 a.m. Charlotte, North Carolina time on (A) theretothe third Business Day prior to the proposed date of borrowing, reading in its entirety the case of Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as follows:the Borrowers and the Administrative Agent, with the consent of the Required Lenders, may agree), the Borrowers shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrowers to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid Quotes, which each Borrower requires the Administrative Agent to issue pursuant to this paragraph (g), such Borrower shall pay to the Administrative Agent for the account of the Administrative Agent a bid administration fee of $1,500.00.
Appears in 1 contract
Competitive Bid Loans. The Company (a) Subject to and upon the terms and conditions and in reliance upon the representations and warranties of the Borrower herein set forth, each Bank severally and not jointly agrees that the Borrower may obtain incur a loan or loans under Sections 1.1 (each a "Competitive Bid Loan" and 1.2 pursuant to collectively, the competitive bid procedures set forth in the Section 1.10 ("Competitive Bid Loans"), subject ) pursuant to a Competitive Bid Borrowing from time to time on and after the Effective Date and prior to the terms and conditions of Section 1.1 or 1.1 (as the case may be)Final Maturity Date, except as otherwise provided in this Section 1.10. Each Bank may make such Competitive Bid Loans to the Companyor, subject to the terms and conditions hereof, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1if earlier, the aggregate outstanding amount of Competitive Bid Loans made against the Aggregate Commitment shall reduce each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any date of the terms termination or expiration of such Competitive Bid Loan. The procedure for making the Commitments; provided that no Competitive Bid Loans shall be as follows:
made hereunder if, after giving effect to any Competitive Bid Borrowing and the use of the proceeds thereof, the sum of (ai) The Company may make requests for bids from the Banks aggregate principal amount of Loans outstanding at any time plus (ii) the Letter of Credit Outstandings would exceed the Total Commitment. Within the foregoing limits and subject to make the conditions set out in Section 6, Competitive Bid Loans may be repaid and reborrowed in accordance with the provisions hereof. No Competitive Bid Loan shall be entitled to be converted into any other type of Loan.
("b) Whenever the Borrower desires to make a Borrowing of Competitive Bids") Bid Loans hereunder, it shall give the Administrative Agent, not later than 9:00 a.m., Milwaukee 11:00 a.m. (New York City time, ) on the fourth Business Day prior to the date of such proposed borrowing date for one or more Competitive Bid Loans. Each Borrowing, a written notice in the form of Exhibit A-2 hereto (a "Notice of Competitive Bid Borrowing"), such request shall be given directly notice to specify in each of the Banks, shall be given in writing case (which may be a facsimile transmission) signed by the Company, and shall specify (Ii) the proposed borrowing date, date (which shall be a Business Day, (ii) and the aggregate amount of the requested proposed Competitive Bid Loans, Borrowing (which shall not be less than $1,000,000 or100,000,000 and, for amounts if greater, shall be in excess thereof, an integral multiple of $100,0005,000,000), (ii) the Interest Period and maturity date for repayment of each Competitive Bid Loan to be made as part of such Competitive Bid Borrowing (which maturity date shall be the last day of the Interest Period relating thereto, and may not be later than the Final Maturity Date), (iii) the interest period for each payment date or dates relating thereto, (iv) whether the proposed Competitive Bid Loan ("Loan Period"), which shall commence on the applicable borrowing date and end on Borrowing is to be an Absolute Rate Borrowing or a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid)Spread Borrowing, and if a Spread Borrowing, the last day of each such Loan PeriodInterest Rate Basis, and (ivv) if more than one Loan Period is so specifiedany other terms to be applicable to such Competitive Bid Borrowing. Promptly after receipt of a Notice of Competitive Bid Borrowing, the principal amount allocable to Administrative Agent shall provide each such Loan PeriodBank with a copy thereof.
(bc) Each Bank shall, if in its sole discretion it elects to do so, irrevocably offer to make one or more Competitive Bid Loans to the Borrower as part of such proposed Competitive Bid Borrowing at a rate or rates of interest specified by such Bank in its sole discretion may and determined by such Bank independently of each other Bank, by notifying the Administrative Agent (but is not obligated to) submit one or more Competitive Bids which shall give prompt notice thereof to the Company not later than 11:00 a.m.Borrower), Milwaukee before 10:00 a.m. (New York City time, ) on the proposed borrowing date specified in such request for Competitive Bids (such 11:00 a.m. time being herein called the "Submission DeadlineReply Date") by facsimile or which is (x) in writingthe case of an Absolute Rate Borrowing, the Business Day before and thereby irrevocably offer to make all or any part (any y) in the case of a Spread Borrowing, three Business Days before, the date of such part referred to as a "Portion") proposed Competitive Bid Borrowing, of any the minimum amount and maximum amount of each Competitive Bid Loan described in which such Bank would make as part of such proposed Competitive Bid Borrowing (which amounts may, subject to the relevant request for Competitive Bids at a fixed proviso to the first sentence of Section 2.3(a), exceed such Bank's Commitment), the rate or rates of interest per annum (each therefor and such Bank's Lending Office with respect to such Competitive Bid Loan; provided that if the Administrative Agent in its capacity as a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids may be delivered by any Bank.
(c) The Company Bank shall, in its sole discretion but subject discretion, elect to paragraph make any such offer, it shall notify the Borrower of such offer before 9:30 a.m. (dNew York City time) belowon the Reply Date. If any Bank shall elect not to make such an offer, irrevocably accept or reject such Bank shall so notify the Administrative Agent, before 10:00 a.m. (New York City time) on the Reply Date, and such Bank shall not be obligated to, and shall not, make any Competitive Bid Loan as part of such Competitive Bid (or Borrowing; provided that the failure by any Portion thereof) Bank to give such notice shall not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to cause such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior be obligated to 12:00 noon on such day, all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of make any Competitive Bid shall constitute a borrowing notice Loan as part of the Company, and shall specify the amount, maturity date and Bid Rate for each such proposed Competitive Bid Loan. The Company will give written notice to the Agent in the form of Part 3 to Exhibit 2.1 hereto on each Business Day on which there is any change in the aggregate outstanding principal amount of Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on such Business DayBorrowing.
(d) If The Borrower shall, in turn, before (x) in the Company accepts a Portion case of a proposed Competitive Bid Loan for a single Loan Period at the Bid Absolute Rate provided therefor in a Bank's Competitive BidBorrowings, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids Noon (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period an no other criteria. If two (2New York City time) or more Banks submit Competitive Bids with identical Bid Rates for (y) in the same Loan Period and case of Spread Borrowings, 1:00 p.m. (New York City time) on the Company accepts any thereofReply Date, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make either (1) cancel such Competitive Bid Loan (or Portions thereof) in an aggregate principal amount of $1,000,000Borrowing by giving the Administrative Agent notice to that effect, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banks.
(e) Not later than 1:30 p.m., Milwaukee time, on the relevant borrowing date, each Bank whose Competitive Bid was accepted by the Company shall make available to the Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, in immediately available funds.
(h) Section 2.2(b) of the Credit Agreement is amended by adding an additional subparagraph (3) thereto, reading in its entirety as follows:or
Appears in 1 contract
Samples: Credit Agreement (Eastman Kodak Co)
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 (a) Subject to and 1.2 pursuant to the competitive bid procedures set forth in the Section 1.10 ("Competitive Bid Loans"), subject to upon the terms and conditions herein set forth, each Bank severally agrees that any Borrower may incur a Competitive Bid Loan in Dollars or in an Alternative Currency pursuant to a Notice of Competitive Bid Borrowing from time to time on and after the Effective Date and prior to the date which is the Business Day preceding the date which is 30 days prior to the Termination Date, provided that the Total Outstanding Amount, after giving effect to the Loan so requested and all other Loans then requested which have not yet been funded, will not exceed the Total Commitment then in effect. The determination required by the immediately preceding sentence shall be made by the Administrative Agent in accordance with the last paragraph of Section 1.1 2.01(a). Within the foregoing limits and subject to the conditions set forth in this Agreement, Competitive Bid Loans may be repaid and reborrowed in accordance with the provisions hereof. Competitive Bid Loans made on any Funding Date shall be in Dollars, or 1.1 in the requested Alternative Currency, in an aggregate minimum amount of $10,000,000 (as or the Currency Equivalent thereof in any Alternative Currency) and in integral multiples in the case may beof Loans denominated in Dollars, of $1,000,000 in excess of such amount and, in the case of Loans denominated in an Alternative Currency, in integral multiples of 1,000,000 units.
(b) Whenever the Company or a Subsidiary Borrower desires to incur a Competitive Bid Loan, it shall (i) in the case of the Company, deliver to the Administrative Agent and each Bank, and (ii) in the case of a Subsidiary Borrower, deliver to the Company (which shall deliver to the Administrative Agent and each Bank), except a Notice of Competitive Bid Borrowing, such notice to specify in each case (A) the date of the proposed Competitive Bid Loan(s), (B) the aggregate amount of the proposed Competitive Bid Loan(s), (C) the maturity date for repayment of each Competitive Bid Loan to be made as otherwise provided in this Section 1.10. Each Bank may make part of such Competitive Bid Loans (each of which maturity dates may not be later than the Business Day prior to the CompanyTermination Date), subject (D) the currency of the proposed Competitive Bid Loan(s) (which shall be Dollars or, in the case of a LIBOR Auction, an Alternative Currency), (E) the Account of the Borrower for such Loan(s), (F) the interest payment date or dates relating thereto, (G) whether the Competitive Bid Loan(s) are to be Competitive Bid Absolute Rate Loans or Competitive Bid LIBOR Loans, (H) the aggregate principal amount of Loans outstanding in Dollars and in each Alternative Currency after giving effect to the proposed Competitive Bid Loan(s) and all other Loans then requested which have not yet been funded and (I) any other terms and conditions hereofto be applicable to such Competitive Bid Loan(s). A Notice of Competitive Bid Borrowing must be received no later than 11:00 A.M. (New York City time) on (i) the fifth Business Day prior to the date of the Borrowing proposed therein, in such amounts as such Bankthe case of a LIBOR Auction or (ii) the Business Day next preceding the date of Borrowing proposed therein, in the case of an Absolute Rate Auction. No Notice of Competitive Bid Borrowing shall be given earlier than three Business Days subsequent to the making of the last Competitive Bid Loan.
(c) Each Bank shall, if, in its sole discretion, desires it elects to do so, irrevocably offer to make to the Company. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of Competitive Bid Loans made against the Aggregate Commitment shall reduce each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any of the terms of such Competitive Bid Loan. The procedure for making Competitive Bid Loans shall be as follows:
(a) The Company may make requests for bids from the Banks to make Competitive Bid Loans ("Competitive Bids") not later than 9:00 a.m., Milwaukee time, on the proposed borrowing date for one or more Competitive Bid Loans. Each Loans to the applicable Borrower as part of such request shall be given directly to each of the Banks, shall be given in writing (which may be a facsimile transmissionproposed Competitive Bid Loan(s) signed by notifying the Company, and shall specify not later than (Ii) 2:00 P.M. (New York City time) on the fourth Business Day prior to the proposed borrowing datedate of Borrowing, which shall be in the case of a Business Day, LIBOR Auction and (ii) the aggregate amount of the requested Competitive Bid Loans, which shall not be less than $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000, 10:00 A.M. (iiiNew York City time) the interest period for each Competitive Bid Loan ("Loan Period"), which shall commence on the applicable borrowing date and end on a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day of each such Loan Period, and (iv) if more than one Loan Period is so specified, the principal amount allocable to each such Loan Period.
(b) Each Bank in its sole discretion may (but is not obligated to) submit one or more Competitive Bids to the Company not later than 11:00 a.m., Milwaukee time, on the proposed borrowing date specified of Borrowing, in the case of an Absolute Rate Auction (each such request for Competitive Bids (such 11:00 a.m. time date being herein called the "Submission Deadline") by facsimile or in writing, and thereby irrevocably offer to make all or any part (any such part hereinafter referred to as a "PortionReply Date"), of (i) the minimum amount and maximum amount of any each Competitive Bid Loan described which such Bank would be willing to make as part of such proposed Competitive Bid Loan(s) (which amounts may, subject to the provisions of Section 2.01(a), exceed such Bank's Commitment); provided that the minimum amount of any Bank's bid shall be at least $5,000,000 (or, in the relevant request case of a Competitive Bid Loan denominated in an Alternative Currency, the Currency Equivalent thereof in such Alternative Currency), (ii) in the case of a LIBOR Auction, the margin above or below the applicable Eurocurrency Rate (the "Bid Margin") offered for each such Competitive Bids at Bid Loan, expressed as a fixed percentage (specified to the nearest 1/10,000th of 1%) to be added to or subtracted from such base rate and (iii) in the case of an Absolute Rate Auction, the rate of interest per annum (each a specified to the nearest 1/10,000th of 1%) (the "Bid Absolute Rate") specified thereinoffered for each such Competitive Bid Loan. If any Bank shall not notify the Company, without reference before 2:00 P.M. or 10:00 a.m. (New York City time), as the case may be, on the Reply Date of its offer of a Competitive Bid Loan, such Bank shall be deemed not to the LIBOR Rate or other basis for interest rates, in be making an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple offer with respect to such Competitive Bids may be delivered by any BankBid Loan.
(cd) The Company shall, in its sole discretion but subject turn, before 11:00 A.M. (New York City time) on (i) the third Business Day prior to paragraph the proposed date of Borrowing, in the case of a LIBOR Auction or (dii) belowthe Reply Date, irrevocably accept or reject any in the case of an Absolute Rate Auction either
(A) cancel such Competitive Bid Loan by giving the Administrative Agent and each Bank notice to that effect (whereupon such Competitive Bid Loan will not be made), or
(B) accept one or more of the offers made by any Portion thereofBank or Banks pursuant to Section 2.02(c), in its sole discretion, by giving notice to the Administrative Agent and such Bank of the amount of each Competitive Bid Loan (which amount shall be equal to or greater than the minimum amount, and equal to or less than the maximum amount, notified to the Company by such Bank or Banks for such Competitive Bid Loan pursuant to Section 2.02(c)) to be made by such Bank as part of such Competitive Bid Loan, and reject any remaining offers made by Banks pursuant to Section 2.02(c) above by giving the Administrative Agent and such Bank notice to that effect.
(e) On the Funding Date of each Competitive Bid Loan, each Bank required to participate therein will make available its share of such Competitive Bid Loan (as specified in Section 2.02(d)) by causing funds in such amount to be credited to the Account of the Borrower in same day funds (or, in the case of any Alternative Currency, in such funds as may then be customary for the settlement of international transactions in such Alternative Currency) not later than 12:00 noon Noon (local time in the city in which the Borrower's Account is located).
(f) Each Competitive Bid Loan shall be payable on the proposed borrowing maturity date by notice to specified in the appropriate Bank by telephone (confirmed in writing promptly delivered Notice of Competitive Bid Borrowing relating to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent in the form of Part 3 to Exhibit 2.1 hereto on each Business Day on which there is any change in the aggregate outstanding principal amount of Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on such Business Day.
(d) If the Company accepts a Portion of a proposed Competitive Bid Loan for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period an no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make such Competitive Bid Loan (or Portions thereof) in an aggregate principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banks.
(e) Not later than 1:30 p.m., Milwaukee time, on the relevant borrowing date, each Bank whose Competitive Bid was accepted by the Company shall make available to the Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, in immediately available funds.
(h) Section 2.2(b) of the Credit Agreement is amended by adding an additional subparagraph (3) thereto, reading in its entirety as follows:
Appears in 1 contract
Samples: Credit Agreement (Textron Inc)
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 and 1.2 pursuant (a) In addition to Revolving Loans, at any time prior to the competitive bid procedures Revolving Credit Termination Date and provided no Default or Event of Default exists hereunder, the Borrower may, as set forth in this SECTION 2.2, request the Section 1.10 ("Competitive Bid Loans"), subject Lenders to the terms and conditions of Section 1.1 or 1.1 (as the case may be), except as otherwise provided in this Section 1.10. Each Bank may make such offers to make Competitive Bid Loans to the CompanyBorrower in Dollars. The Lenders may, subject to but shall have no obligation to, make such offers and the terms Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this SECTION 2.2. There may be no more than ten (10) different Interest Periods for both Revolving Loans and conditions hereof, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of Competitive Bid Loans made against outstanding at the Aggregate Commitment shall reduce same time (for which purpose Interest Periods for each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Eurodollar Rate Loan and each Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any of the terms of such Competitive Bid Loandeemed to be different Interest Periods even if they are coterminous). The procedure for making aggregate principal amount of all Outstandings, shall not exceed the Total Revolving Credit Commitment at any time. The aggregate principal amount of all outstanding Competitive Bid Loans shall be as follows:not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any time.
(ab) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Agent and the Lenders notice (a "Competitive Bid Quote Request") to be received no later than 11:00 a.m. on (A) the fourth Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrower and the Agent, with the consent of the Required Lenders, may agree). The Company Borrower may make requests for bids from the Banks request offers to make Competitive Bid Loans for up to five (5) different Interest Periods in a single notice; PROVIDED that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate borrowing (a "Competitive BidsBid Borrowing") and there shall not later be outstanding at any one time more than 9:00 a.m., Milwaukee time, on the proposed borrowing date for one or more six (6) Competitive Bid LoansBorrowings. Each such request Competitive Bid Quote Request shall be given directly to each substantially in the form of the Banks, shall be given in writing (which may be a facsimile transmission) signed by the Company, EXHIBIT J attached hereto and shall specify as to each Competitive Bid Borrowing:
(Ii) the proposed borrowing datedate of such borrowing, which shall be a Business Day, ;
(ii) the aggregate amount of the requested such Competitive Bid LoansBorrowing, which shall not be less than at least $5,000,000 (or in increments of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000, ) but shall not cause the limits specified in SECTION 2.2(A) hereof to be violated;
(iii) the interest period for each Competitive Bid Loan ("Loan Period"), which shall commence on duration of the Interest Period applicable borrowing date and end on a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day of each such Loan Period, and thereto;
(iv) if more than one Loan whether the Competitive Bid Quote Request for a particular Interest Period is so specified, seeking quotes for Competitive Bid Loans at the principal amount allocable Absolute Rate or the Eurodollar Competitive Rate;
(v) whether the Borrower shall have the right to each prepay a requested Competitive Bid Loan; and
(vi) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Loan PeriodCompetitive Bid Quotes are to be submitted is called the "Quotation Date").
(bi) Each Bank in its sole discretion Lender may (but is not obligated to) submit one or more Competitive Bids Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; PROVIDED that, if the Borrower's request under SECTION 2.2(B) hereof specified more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the Company Borrower not later than 11:00 a.m., Milwaukee time, 9:30 a.m. on (A) the third Business Day prior to the proposed borrowing date specified of borrowing, in such request the case of a Competitive Bid Quote Request for Competitive Bids Bid Loans at the Eurodollar Competitive Rate or (such 11:00 a.m. time being herein called B) the "Submission Deadline") by facsimile or Quotation Date, in writingthe case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, and thereby irrevocably offer to make all or any part (in any such part referred to case, such other time and date as a "Portion"the Borrower and the Agent, with the consent of the Required Lenders, may agree) of PROVIDED that if NationsBank is receiving quotes as provided in SECTION 2.2(G), any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids Quote may be delivered submitted by NationsBank (or its applicable Lending Office) only if NationsBank (or such applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than 9:15 a.m. on the Quotation Date. Subject to ARTICLES IV, V AND IX hereof, any BankCompetitive Bid Quote so made shall be irrevocable except with the consent of the Agent given on the instructions of the Borrower.
(cii) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Each Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids Quote shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent substantially in the form of Part 3 to Exhibit 2.1 EXHIBIT K attached hereto on each Business Day on which there is any change in and shall specify:
(A) the aggregate outstanding proposed date of borrowing and the Interest Period therefor;
(B) the principal amount of the Competitive Bid LoansLoan for which each such offer is being made, setting forth which principal amount shall be at least $5,000,000 (or in increments of $1,000,000 in excess thereof); PROVIDED that the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any for which a Lender submits Competitive Bid Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested;
(C) in the case of a Competitive Bid Quote for Competitive Bid Loans made on at an Absolute Rate, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Business DayCompetitive Bid Loan (the "ABSOLUTE RATE");
(D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Eurodollar Competitive Rate, the positive or negative margin to be added to or deducted from the Interbank Offered Rate; and
(E) the identity of the quoting Lender. Unless otherwise agreed by the Agent and the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made. Any subsequent Competitive Bid Quote submitted by a Lender that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request shall be disregarded by the Borrower unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(d) If The Borrower shall (A) in the Company accepts a Portion case of a proposed Competitive Bid Loan for at an Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 10:30 a.m. on the Quotation Date (or such other time and date as the Borrower and the Agent, with the consent of the Required Lenders, may agree)) or (B) in the case of a single Competitive Bid Loan Period at a Eurodollar Competitive Rate, the Bid Rate provided therefor in a Bank's Competitive Bidthird Business Day prior to the proposed date of borrowing, such Portion shall be in a notify the Agent and Lenders of (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (B) the respective principal amounts and Absolute Rates or Eurodollar Competitive Rates, as the case may be, so offered by each Lender (identifying the Lender that made each Competitive Bid Quote), and (C) its acceptance or nonacceptance of the Competitive Bid Quotes. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in whole or in part (PROVIDED that any Competitive Bid Quote accepted in part shall be at least $5,000,000 or in increments of $1,000,000 or, for amounts in excess thereof, ); PROVIDED that:
(i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request;
(ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or an integral multiple increment of $100,000. If 1,000,000 in excess thereof) but shall not cause the Company accepts limits specified in SECTION 2.2(A) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes for any Interest Period may be made only in ascending order of Absolute Rates or Eurodollar Competitive Rates, as the case may be, beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Loan Quote where such Competitive Bid Quote fails to comply with SECTION 2.2(C)(II) hereof or Portion offered in any Competitive Bidotherwise fails to comply with the requirements of this Agreement (including, without limitation, SECTION 2.2(A) hereof). Any of the conditions above notwithstanding, the Company must Borrower may, in its sole discretion, accept Competitive Bids (and a Competitive Bid Loans and Portions thereby offered) based exclusively upon Quote that does not contain the successively lowest Absolute Rate or Eurodollar Competitive Rates, as the case may be, where acceptance of the Competitive Bid Rates within each Loan Period an no other criteriaQuote containing the lowest Absolute Rate or Eurodollar Competitive Rate, as the case may be, would cause the principal amount of Outstanding of a Lender or Lenders offering the lowest Absolute Rate or Eurodollar Competitive Rate, as the case may be, to exceed the Total Revolving Credit Commitment. If Competitive Bid Quotes are made by two (2) or more Banks submit Lenders with the same Absolute Rates or Eurodollar Competitive Bids with identical Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Rates Quotes are accepted for the same Loan related Interest Period and after the Company accepts acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Eurodollar Competitive Rates, as the case may be, offered by any thereofLender for such related Interest Period, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the principal amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make in respect of which such Competitive Bid Loan Quotes are accepted shall be allocated by the Borrower among such Lenders as nearly as possible (in amounts of at least $1,000,000 or Portions in increments of $100,000 in excess thereof) in an proportion to the aggregate principal amount of $1,000,000, or for such Competitive Bid Quotes. Determinations by the Borrower of the amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereofand the lowest bid after adjustment as provided in SECTION 2.2(d)(iii) allocated to such Bank or Banks as shall be conclusive in the Company shall select as necessary to a minimum absence of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banksmanifest error.
(e) Not Any Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:30 p.m., Milwaukee time, 1:00 p.m. on the relevant borrowing datedate specified for the making of such Loan, each Bank whose Competitive Bid was accepted by make the Company shall make amount of such Loan available to the Agent, Borrower at the Borrower's Account or otherwise as shall be directed by the Authorized Representative in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, Dollars and in immediately available funds.
(hf) Section 2.2(bFrom time to time, the Borrower shall furnish such information to the Agent as the Agent may request relating to the making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and maturities thereof.
(g) The Borrower may request the Agent, and the Agent in its sole discretion may agree, to receive the Competitive Bid Quotes, in which event the Agent shall (A) in the case of a Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 a.m., on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Eurodollar Competitive Rate, by 10:00 a.m. on the date a Competitive Quote is submitted, notify the Borrowers of the Credit Agreement terms of any Competitive Bid Quote submitted by a Lender that is amended in accordance with SECTION 2.2(c) hereof. The Agent's notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or Eurodollar Competitive Rate, as the case may be, offered by adding an additional subparagraph each Lender (3identifying the Lender that made each Competitive Bid Quote). Not later than 10:30 a.m. on (A) theretothe third Business Day prior to the proposed date of borrowing, reading in its entirety the case of Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as follows:the Borrower and the Agent, with the consent of the Required Lenders, may agree), the Borrower shall notify the Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid Quotes, which the Borrower requires the Agent to issue pursuant to this paragraph (g), the Borrower shall pay to the Agent for the account of the Agent a bid administration fee of $1,500.00.
Appears in 1 contract
Samples: Revolving Credit and Reimbursement Agreement (Watsco Inc)
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 and 1.2 pursuant to the competitive bid procedures set forth in the Section 1.10 ("Competitive Bid Loans"), subject a) Subject to the terms and conditions set forth herein, from time to time during the Revolving Credit Commitment Period, any Borrower may request Competitive Bids and may (but shall not have any obligation to) accept Competitive Bids and borrow Competitive Bid Loans; provided that (i) the aggregate principal amount of Section 1.1 or 1.1 outstanding Competitive Bid Loans at any time shall not exceed 50% of the aggregate amount of the greater of (A) the Total Revolving Credit Commitments as of the case may be), except as otherwise provided in this Section 1.10. Each Bank may make Closing Date and (B) the Total Revolving Credit Commitments at the time such Competitive Bid Loans Loan is made, (ii) after giving effect to the Companymaking of such Competitive Bid Loan, the aggregate amount of the Available Revolving Credit Commitments shall not be less than zero and (iii) after giving effect to the making of such Competitive Bid Loan, the aggregate amount of Revolving Extensions of Credit owing by such Borrower shall not exceed the limit applicable to such Borrower set forth in Section 2.4(c). To request Competitive Bids, the requesting Borrower shall notify the Administrative Agent of such request by telephone, in the case of a Eurodollar Loan, not later than 1:00 p.m., New York City time, four Business Days before the date of the proposed Eurodollar Loan and, in the case of an Absolute Rate Loan, not later than 12:00 noon, New York City time, one Business Day before the date of the proposed Absolute Rate Loan; provided that the Borrower may submit no more than three (3) Competitive Bid Requests within any 30 day period. Each such telephonic Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Competitive Bid Request in the form of Exhibit H (or such other form approved by the Administrative Agent) and signed by the applicable Borrower. Each such telephonic and written Competitive Bid Request shall specify the following information:
(i) the aggregate amount of the requested Competitive Bid Loan;
(ii) the date such Competitive Bid Loan is to be made, which shall be a Business Day;
(iii) whether such Competitive Bid Loan is to be a Eurodollar Loan or an Absolute Rate Loan;
(iv) (A) the term for and Interest Period(s) applicable to any Competitive Bid Loan which is a Eurodollar Loan, which term shall be a period of one, two, three or six months for Eurodollar Loans or (B) the term for any Absolute Rate Loans, which shall be seven to 180 days; and
(v) the location and number of the Borrower’s account to which funds are to be disbursed. Promptly following receipt of a Competitive Bid Request in accordance with this Section 2.26, the Administrative Agent shall notify the Lenders of the details thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or more Competitive Bids to the requesting Borrower in response to a Competitive Bid Request. Each Competitive Bid by a Lender must be in a form approved by the Administrative Agent and must be received by the Administrative Agent by telecopy, in the case of a Eurodollar Loan, not later than 9:30 a.m., New York City time, three Business Days before the proposed date of such Competitive Bid Loan, and in the case of an Absolute Rate Loan, not later than 10:00 a.m., New York City time, on the proposed date of such Competitive Bid Loan. Competitive Bids that do not conform substantially to the form approved by the Administrative Agent may be rejected by the Administrative Agent, and the Administrative Agent shall notify the applicable Lender and Borrowers of such rejection as promptly as practicable. Each Competitive Bid shall specify (i) the principal amount (which shall be a minimum of $20,000,000 and an integral multiple of $10,000,000 and which may equal the entire principal amount of the Competitive Bid Loan requested by the Borrower) of the Competitive Bid Loan or Loans that the Lender is willing to make, (ii) the Competitive Bid Rate or Competitive Bid Rates at which the Lender is prepared to make such Loan or Loans (expressed as a percentage rate per annum in the form of a decimal to no more than four decimal places), (iii) if a Eurodollar Loan, the Interest Period applicable to each such Loan and (iv) the maturity of such Loan.
(c) The Administrative Agent shall provide by telecopy to the Borrower a copy of each Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower may accept or reject any Competitive Bid. The Borrower shall notify the Administrative Agent by telephone, confirmed by telecopy in a form approved by the Administrative Agent, whether and to what extent it has decided to accept or reject each Competitive Bid, in the case of a Eurodollar Loan, not later than 1:00 p.m., New York City time, three Business Days before the date of the proposed Competitive Bid Loan, and in the case of an Absolute Rate Loan, not later than 12:00 noon, New York City time, on the proposed date of the Competitive Bid Loan; provided that (i) the failure of the Borrower to give such notice shall be deemed to be a rejection of each applicable Competitive Bid, (ii) the Borrower shall not accept a Competitive Bid made at a particular Competitive Bid Rate if the Borrower rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii) the Borrower may accept Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in the case of multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata in accordance with the amount of each such Competitive Bid, and (iv) except pursuant to clause (iii) above, no Competitive Bid shall be accepted for a Competitive Bid Loan unless such Competitive Bid Loan is in a minimum principal amount of $20,000,000 and an integral multiple of $10,000,000; provided further that if a Competitive Bid Loan must be in an amount less than $20,000,000 because of the provisions of clause (iii) above, such Competitive Bid Loan may be for a minimum of $1,000,000 or any integral multiple thereof, and in calculating the pro rata allocation of acceptances of portions of multiple Competitive Bids at a particular Competitive Bid Rate pursuant to clause (iii) the amounts shall be rounded to integral multiples of $1,000,000 in a manner determined by the Borrower. A notice given by the Borrower pursuant to this paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender by telecopy whether or not its Competitive Bid has been accepted (and, if so, the principal amount and Competitive Bid Rate so accepted), and each successful bidder will thereupon become bound, subject to the terms and conditions hereof, to make the Competitive Bid Loan in such amounts as such Bank, respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive Bid in its sole discretioncapacity as a Lender, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of Competitive Bid Loans made against the Aggregate Commitment it shall reduce each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes submit such Competitive Bid Loans. directly to the Borrower at least one quarter of an hour earlier than the time by which the other Lenders are required to submit their Competitive Bids to the Administrative Agent pursuant to Section 2.26(b).
(g) Any Lender whose offer to make any Competitive Bid Loan made under the Demand Line shall be due and payable upon demand has been accepted in accordance with the terms and conditions of this AgreementSection 2.26 shall, notwithstanding any of the terms of such Competitive Bid Loan. The procedure for making Competitive Bid Loans shall be as follows:
(a) The Company may make requests for bids from the Banks to make Competitive Bid Loans ("Competitive Bids") not later than 9:00 a.m.1:00 p.m., Milwaukee New York City time, on the proposed borrowing date specified for one or more Competitive Bid Loans. Each the making of such request shall be given directly to each of the BanksLoan, shall be given in writing (which may be a facsimile transmission) signed by the Company, and shall specify (I) the proposed borrowing date, which shall be a Business Day, (ii) the aggregate amount of the requested Competitive Bid Loans, which shall not be less than $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000, (iii) the interest period for each Competitive Bid Loan ("Loan Period"), which shall commence on the applicable borrowing date and end on a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day of each such Loan Period, and (iv) if more than one Loan Period is so specified, make available the principal amount allocable to each of such Loan Period.
(b) Each Bank in its sole discretion may (but is not obligated to) submit one or more Competitive Bids to the Company not later than 11:00 a.m., Milwaukee time, on the proposed borrowing date Administrative Agent as specified in such request for Competitive Bids (such 11:00 a.m. time being herein called the "Submission Deadline") by facsimile or in writing, and thereby irrevocably offer to make all or any part (any such part referred to as a "Portion") of any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids may be delivered by any Bank.
(c) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent in the form of Part 3 to Exhibit 2.1 hereto on each Business Day on which there is any change in the aggregate outstanding principal amount of Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on such Business Day.
(d) If the Company accepts a Portion of a proposed Competitive Bid Loan for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period an no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make such Competitive Bid Loan (or Portions thereof) in an aggregate principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banks.
(e) Not later than 1:30 p.m., Milwaukee time, on the relevant borrowing date, each Bank whose Competitive Bid was accepted by the Company shall make available to the Administrative Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment for account of the applicable borrowing conditionsBorrower. The amount so received by the Administrative Agent shall, subject to the Agent shall deposit in terms and conditions of this Agreement, be made available to the Company's account maintained with Borrower by 2:00 p.m., New York City time, on such date by depositing the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loanssame, in immediately available funds.
(h) Section 2.2(b) , in an account of the Credit Agreement is amended Borrower and designated by adding an additional subparagraph (3) thereto, reading in the Borrower at the time of its entirety as follows:acceptance of a Competitive Bid.
Appears in 1 contract
Competitive Bid Loans. The Company (a) Subject to and upon the terms and conditions and in reliance upon the representations and warranties of the Borrower herein set forth, each Bank severally and not jointly agrees that the Borrower may obtain incur a loan or loans under Sections 1.1 (each a "Competitive Bid Loan" and 1.2 pursuant to collectively, the competitive bid procedures set forth in the Section 1.10 ("Competitive Bid Loans"), subject ) pursuant to a Competitive Bid Borrowing from time to time on and after the Effective Date and prior to the terms and conditions of Section 1.1 or 1.1 (as the case may be)Commitment Termination Date, except as otherwise provided in this Section 1.10. Each Bank may make such Competitive Bid Loans to the Companyor, subject to the terms and conditions hereof, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1if earlier, the aggregate outstanding amount of Competitive Bid Loans made against the Aggregate Commitment shall reduce each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any date of the terms termination or expiration of such Competitive Bid Loan. The procedure for making the Commitments; provided that no Competitive Bid Loans shall be as follows:
(a) The Company may make requests for bids from made hereunder if, after giving effect to any Competitive Bid Borrowing and the Banks use of the proceeds thereof, the aggregate principal amount of Loans outstanding at any time would exceed the Total Commitment. Within the foregoing limits and subject to make the conditions set out in Section 5, Competitive Bid Loans may be repaid and reborrowed in accordance with the provisions hereof. No Competitive Bid Loan shall be entitled to be converted into any other type of Loan.
("b) Whenever the Borrower desires to make a Borrowing of Competitive Bids") Bid Loans hereunder, it shall give the Administrative Agent, not later than 9:00 a.m., Milwaukee 11:00 a.m. (New York City time, ) on the fourth Business Day prior to the date of such proposed borrowing date for one or more Competitive Bid Loans. Each Borrowing, a written notice in the form of Exhibit A-2 hereto (a "Notice of Competitive Bid Borrowing"), such request shall be given directly notice to specify in each of the Banks, shall be given in writing case (which may be a facsimile transmission) signed by the Company, and shall specify (Ii) the proposed borrowing date, date (which shall be a Business Day, (ii) and the aggregate amount of the requested proposed Competitive Bid Loans, Borrowing (which shall not be less than $1,000,000 or100,000,000 and, for amounts if greater, shall be in excess thereof, an integral multiple of $100,0005,000,000), (ii) the Interest Period and maturity date for repayment of each Competitive Bid Loan to be made as part of such Competitive Bid Borrowing (which maturity date shall be the last day of the Interest Period relating thereto, and may not be later than the Commitment Termination Date), (iii) the interest period for each payment date or dates relating thereto, (iv) whether the proposed Competitive Bid Loan ("Loan Period"), which shall commence on the applicable borrowing date and end on Borrowing is to be an Absolute Rate Borrowing or a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid)Spread Borrowing, and if a Spread Borrowing, the last day of each such Loan PeriodInterest Rate Basis, and (ivv) if more than one Loan Period is so specifiedany other terms to be applicable to such Competitive Bid Borrowing. Promptly after receipt of a Notice of Competitive Bid Borrowing, the principal amount allocable to Administrative Agent shall provide each such Loan PeriodBank with a copy thereof.
(bc) Each Bank shall, if in its sole discretion it elects to do so, irrevocably offer to make one or more Competitive Bid Loans to the Borrower as part of such proposed Competitive Bid Borrowing at a rate or rates of interest specified by such Bank in its sole discretion may and determined by such Bank independently of each other Bank, by notifying the Administrative Agent (but is not obligated to) submit one or more Competitive Bids which shall give prompt notice thereof to the Company not later than 11:00 a.m.Borrower), Milwaukee before 10:00 a.m. (New York City time, ) on the proposed borrowing date specified in such request for Competitive Bids (such 11:00 a.m. time being herein called the "Submission DeadlineReply Date") by facsimile or which is (x) in writingthe case of an Absolute Rate Borrowing, the Business Day before and thereby irrevocably offer to make all or any part (any y) in the case of a Spread Borrowing, three Business Days before, the date of such part referred to as a "Portion") proposed Competitive Bid Borrowing, of any the minimum amount and maximum amount of each Competitive Bid Loan described in which such Bank would make as part of such proposed Competitive Bid Borrowing (which amounts may, subject to the relevant request for Competitive Bids at a fixed proviso to the first sentence of Section 2.3(a), exceed such Bank's Commitment), the rate or rates of interest per annum (each therefor and such Bank's Lending Office with respect to such Competitive Bid Loan; provided that if the Administrative Agent in its capacity as a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids may be delivered by any Bank.
(c) The Company Bank shall, in its sole discretion but subject discretion, elect to paragraph make any such offer, it shall notify the Borrower of such offer before 9:30 a.m. (dNew York City time) belowon the Reply Date. If any Bank shall elect not to make such an offer, irrevocably accept or reject such Bank shall so notify the Administrative Agent, before 10:00 a.m. (New York City time) on the Reply Date, and such Bank shall not be obligated to, and shall not, make any Competitive Bid Loan as part of such Competitive Bid (or Borrowing; provided that the failure by any Portion thereof) Bank to give such notice shall not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to cause such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior be obligated to 12:00 noon on such day, all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of make any Competitive Bid shall constitute a borrowing notice Loan as part of the Company, and shall specify the amount, maturity date and Bid Rate for each such proposed Competitive Bid Loan. The Company will give written notice to the Agent in the form of Part 3 to Exhibit 2.1 hereto on each Business Day on which there is any change in the aggregate outstanding principal amount of Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on such Business DayBorrowing.
(d) If The Borrower shall, in turn, before (x) in the Company accepts a Portion case of a proposed Competitive Bid Loan for a single Loan Period at the Bid Absolute Rate provided therefor in a Bank's Competitive BidBorrowings, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids Noon (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period an no other criteria. If two (2New York City time) or more Banks submit Competitive Bids with identical Bid Rates for (y) in the same Loan Period and case of Spread Borrowings, 1:00 p.m. (New York City time) on the Company accepts any thereofReply Date, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make either (1) cancel such Competitive Bid Loan (or Portions thereof) in an aggregate principal amount of $1,000,000Borrowing by giving the Administrative Agent notice to that effect, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banks.
(e) Not later than 1:30 p.m., Milwaukee time, on the relevant borrowing date, each Bank whose Competitive Bid was accepted by the Company shall make available to the Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, in immediately available funds.
(h) Section 2.2(b) of the Credit Agreement is amended by adding an additional subparagraph (3) thereto, reading in its entirety as follows:or
Appears in 1 contract
Samples: Credit Agreement (Eastman Kodak Co)
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 and 1.2 pursuant (a) In addition to borrowings of Revolving Credit Loans, at any time prior to the competitive bid procedures Revolving Credit Termination Date the Borrower may, as set forth in the Section 1.10 ("Competitive Bid Loans"), subject to the terms and conditions of Section 1.1 or 1.1 (as the case may be), except as otherwise provided in this Section 1.10. Each Bank may 2.03, request the Lenders to make such offers to make Competitive Bid Loans to the CompanyBorrower in Dollars. The Lenders may, subject to but shall have no obligation to, make such offers and the terms and conditions hereofBorrower may, but shall have no obligation to, accept any such offers in such amounts as such Bank, the manner set forth in its sole discretion, desires to make to the Companythis Section 2.03. Notwithstanding any contrary provision The making of Section 1.1, the aggregate outstanding amount of Competitive Bid Loans made against the Aggregate Commitment shall reduce each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any a Competitive Bid Loan made under the Demand Line by any Lender shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any of the terms not reduce such Lender's available Revolving Credit Commitment except as a result of such Competitive Bid Loan reducing the availability under the Total Revolving Credit Commitment. Immediately after giving effect to each Competitive Bid Loan, Revolving Credit Outstandings shall not exceed the Total Revolving Credit Commitment. Each Competitive Bid Loan may be repaid only on the last day of the Interest Period with respect thereto unless such payment is accompanied by the additional payment, if any, required by Section 4.05.
(b) When the Borrower wishes to request offers from Lenders to make Competitive Bid Loans, it shall give the Agent (which shall promptly notify the Lenders) notice (a "Competitive Bid Quote Request") to be received no later than 10:00 A.M. on the Business Day immediately preceding the date of borrowing proposed therein (or such other time and date as the Borrower and the Agent, with the consent of the Required Lenders, may agree). The procedure for making Competitive Bid Loans shall be as follows:
(a) The Company Borrower may make requests for bids request offers from the Banks Lenders to make Competitive Bid Loans for up to four (4) different Interest Periods in a single notice; provided that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate borrowing (a "Competitive BidsBid Borrowing") not later than 9:00 a.m., Milwaukee time, on the proposed borrowing date for of one or more Competitive Bid LoansLoans from the Lenders. Each such request Competitive Bid Quote Request shall be given directly to each substantially in the form of the Banks, shall be given in writing (which may be a facsimile transmission) signed by the Company, Exhibit D hereto and shall specify as to each Competitive Bid Borrowing: (Ii) the proposed borrowing datedate of such Competitive Bid Borrowing, which shall be a Business Day, ; (ii) the aggregate amount of the requested such Competitive Bid LoansBorrowing, which shall not be less than at least $1,000,000 or, for amounts in excess thereof, an integral 5,000,000 (or a larger multiple of $100,000, 1,000,000) but shall not cause the limits specified in Section 2.03(a) to be violated; (iii) the interest period for each Competitive Bid Loan ("Loan Period"), which shall commence on duration of the Interest Period applicable borrowing date and end on a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day of each such Loan Period, thereto; and (iv) the date on which the Competitive Bid Quotes are to be submitted if more than one Loan Period it is so specifiedbefore the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the "Quotation Date"). Except as otherwise provided in this Section 2.03(b), no Competitive Bid Quote Request shall be given within five (5) Business Days (or such other number of days as the principal amount allocable to each such Loan PeriodBorrower and the Agent, with the consent of the Required Lenders, may agree) of any other Competitive Bid Quote Request.
(bi) Each Bank in its sole discretion Lender may (but is not obligated to) submit one or more Competitive Bids Bid Quotes, each containing an offer to make a Competitive Bid Loan, in response to any Competitive Bid Quote Request; provided that, if the Borrower's request under Section 2.03(b) specifies more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the Company Agent not later than 11:00 a.m.10:00 A.M. Charlotte, Milwaukee time, North Carolina time on the proposed borrowing Quotation Date (or such other time and date specified in as the Borrower and the Agent, with the consent of the Required Lenders, may agree; the Agent shall promptly notify all Lenders of such request for Competitive Bids (such 11:00 a.m. other agreed upon time being herein called the "Submission Deadline") by facsimile or in writingand date); provided, and thereby irrevocably offer to make all or any part (any such part referred to as a "Portion") of that any Competitive Bid Loan described in Quote may be submitted by the relevant request for Competitive Bids at a fixed rate Agent (or its Applicable Lending Office) only if the Agent (or such Applicable Lending Office) notifies the Borrower of interest per annum the terms of the offer contained therein not later than 9:45 A.M. (each a "Bid Rate"or 15 minutes prior to such other agreed upon time) specified thereinCharlotte, without reference North Carolina time on the Quotation Date. Subject to the LIBOR Rate or other basis for interest ratesexpress provisions of this Agreement, in an aggregate principal amount any Competitive Bid Quote so made shall be irrevocable except with the consent of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple the Agent given at the instruction of $100,000. Multiple Competitive Bids may be delivered by any Bankthe Borrower.
(cii) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Each Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids Quote shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent substantially in the form of Part 3 to Exhibit 2.1 F hereto on each Business Day on which there is any change in and shall specify: (A) the aggregate outstanding proposed date of borrowing and the Interest Period therefor; (B) the principal amount of the Competitive Bid LoansLoan for which such offer is being made, setting forth which principal amount shall be at least $1,000,000 (or a larger multiple of $1,000,000); provided that (x) the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any for which a Lender submits Competitive Bid Loans made on Quotes in response to a Competitive Bid Quote Request may not exceed the principal amount of the Competitive Bid Borrowing for the Interest Period for which offers were requested, and (y) the limits specified in Section 2.03(a) shall not be exceeded; (C) the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Business DayCompetitive Bid Loan (the "Absolute Rate"); and (D) the identity of the quoting Lender. Unless otherwise agreed by the Agent and the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request, and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made.
(d) If The Agent shall, as promptly as practicable after the Company accepts a Portion of a proposed Competitive Bid Loan for a single Loan Period at Quote is submitted (but in any event not later than 10:30 A.M. Charlotte, North Carolina time on the Bid Rate provided therefor in a Bank's Competitive BidQuotation Date), such Portion shall be in a principal amount notify the Borrower of $1,000,000 or, for amounts in excess thereof, an integral multiple the terms (i) of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered Quote submitted by a Lender that is in accordance with Section 2.03(c) and (ii) of any Competitive BidBid Quote that amends, the Company must accept Competitive Bids (and modifies or is otherwise inconsistent with a previous Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period an no other criteria. If two (2) or more Banks submit Competitive Bids Quote submitted by such Lender with identical Bid Rates for respect to the same Loan Period and Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall be disregarded by the Company accepts any thereof, the Company shall accept all Agent unless such subsequent Competitive Bids as nearly as possible Bid Quote is submitted solely to correct a manifest error in proportion such former Competitive Bid Quote. The Agent's notice to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if Borrower shall specify (A) the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make such Competitive Bid Loan (or Portions thereof) in an aggregate principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the for which Competitive Bid of only one of such BanksQuotes have been received and (B) the respective principal amounts and Absolute Rates so offered by each Lender (identifying the Lender that made each Competitive Bid Quote).
(e) Not later than 1:30 p.m.11:00 A.M. Charlotte, Milwaukee time, North Carolina time on the relevant borrowing dateQuotation Date (or such other time and date as the Borrower and the Agent, with the consent of the Required Lenders, may agree), the Borrower shall notify the Agent of its acceptance or nonacceptance of the Competitive Bid Quotes so notified to it pursuant to Section 2.03(d) (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Agent shall promptly notify each Bank affected Lender. In the case of acceptance, such notice shall specify the aggregate principal amount of Competitive Bid Quotes for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $1,000,000 or a larger multiple of $1,000,000); provided that: (i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request; (ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or a larger multiple of $1,000,000) but shall not cause the limits specified in Section 2.03(a) to be violated; (iii) acceptance of Competitive Bid Quotes may be made only in ascending order of Absolute Rates, beginning with the lowest rate so offered; and (iv) the Borrower may not accept any Competitive Bid Quote where the Agent has correctly advised the Borrower that such offer fails to comply with Section 2.03(c)(ii) or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.03(a)). If Competitive Bid Quotes are made by two or more Lenders with the same Absolute Rates, for an aggregate principal amount that is greater than the amount in respect of which Competitive Bid Quotes are accepted for the related Interest Period (after taking into account the acceptance of all Competitive Bid Quotes with lower Absolute Rates, if any, offered by any Lender for such related Interest Period), then the principal amount of Competitive Bid Loans in respect of which such Competitive Bid Quotes are accepted shall be allocated by the Borrower among such Lenders as nearly as possible (in amounts of at least $1,000,000) in proportion to the aggregate principal amount of such Competitive Bid Quotes. Determinations by the Borrower of the amounts of Competitive Bid Loans and the Absolute Rates as provided in Section 2.03(e)(iii) shall be conclusive in the absence of manifest error.
(f) Any Lender whose Competitive Bid was Quote has been accepted in accordance with Section 2.03(e) shall, not later than 1:00 P.M. Charlotte, North Carolina time on the date specified for the making of such Competitive Bid Loan, make the amount of such Competitive Bid Loan as accepted by the Company shall make Borrower available to the Agent, Agent at the Principal Office in Dollars and in immediately available funds, for the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment account of the applicable borrowing conditions, Borrower. The amount so received by the Agent shall deposit shall, subject to the terms and conditions of this Agreement, be made available to the Borrower on such date by depositing the same, in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, Dollars and in immediately available funds, in the Borrower's Account or otherwise as shall be directed by the Borrower.
(h) Section 2.2(b) of the Credit Agreement is amended by adding an additional subparagraph (3) thereto, reading in its entirety as follows:
Appears in 1 contract
Samples: Credit Agreement (Proffitts Inc)
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 and 1.2 (a) In addition to making Revolving Loans pursuant to the competitive bid procedures Revolving Credit Commitments pursuant to Section 2.1. above, the Lenders may, in their sole discretion and at the request of the Borrower, make Competitive Bid Rate Advances to the Borrower in an amount not to exceed the Available Revolving Credit Commitment.
(b) In order to request Competitive Bids, the Borrower shall telecopy to the Agent a duly completed Competitive Bid Request in the form of Exhibit E attached hereto (which may request not more than two Competitive Bids), to be received by the Agent not later than 10:00 a.m. (Atlanta, Georgia) time, four (4) Business Days prior to the proposed Competitive Bid Loan or Loans. A Competitive Bid Request that does not conform substantially to the format of Exhibit E may be rejected in the Agent's sole discretion, and the Agent shall notify the Borrower of such rejection by telecopy not later than 12:00 noon (Atlanta, Georgia time) on the date of receipt. Such request shall in each case refer to this Agreement and specify (i) the date of such Borrowing or Borrowings (which shall be a Business Day) and (ii) the aggregate principal amount thereof which shall be in a minimum principal amount of $5,000,000 and in an integral multiple of $1,000,000, and (iii) the Interest Period requested with respect thereto. Promptly after its receipt of a Competitive Bid Request that is not rejected as aforesaid, the Agent shall invite by telecopy (substantially in the form set forth in Exhibit F attached hereto) the Section 1.10 ("Competitive Bid Loans")Lenders to bid, subject to the terms and conditions of Section 1.1 or 1.1 (as the case may be)this Agreement, except as otherwise provided in this Section 1.10. Each Bank may to make such Competitive Bid Loans Rate Advances pursuant to the Company, subject to the terms and conditions hereof, in such amounts as such BankCompetitive Bid Request.
(c) Each Lender may, in its sole discretion, desires make one or more Competitive Bids (but not more than two) to the Borrower responsive to a Competitive Bid Request. Each Competitive Bid by a Lender must be received by the Agent via telecopy, substantially in the form of Exhibit G attached hereto, not later than 11:00 a.m. (Atlanta, Georgia time) on the Business Day of the proposed Competitive Bid Loan. Multiple bids (not to exceed two per Lender) will be accepted by the Agent. Competitive Bids that do not conform substantially to the format of Exhibit G may be rejected by the Agent acting in consultation with the Borrower, and the Agent shall notify the Lender making such nonconforming bid of such rejection as soon as practicable. Each Competitive Bid shall refer to this Agreement and specify (i) the principal amount (which shall be in a minimum principal amount of $5,000,000 and in an integral multiple of $1,000,000) of the Competitive Bid Rate Advance or Advances that the Lender is willing to make to the Company. Notwithstanding any contrary provision of Section 1.1Borrower, (ii) the aggregate outstanding amount of Competitive Bid Loans made against Rate or Rates at which the Aggregate Commitment shall reduce each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Lender is prepared to make the Competitive Bid LoansRate Advance or Advances, and (iii) the Interest Period and the last day thereof. Any If any Lender shall elect not to make a Competitive Bid, such Lender shall so notify the Agent via telecopy by the time specified above for submitting a Competitive Bid; provided, however, that failure by any Lender to give such notice shall not cause such Lender to be obligated to make any Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any of the terms Rate Advance as part of such Competitive Bid Loan. The procedure for making A Competitive Bid Loans shall be as follows:
(a) The Company may make requests for bids from the Banks to make Competitive Bid Loans ("Competitive Bids") not later than 9:00 a.m., Milwaukee time, on the proposed borrowing date for one or more Competitive Bid Loans. Each such request shall be given directly to each of the Banks, shall be given in writing (which may be submitted by a facsimile transmission) signed by the Company, and shall specify (I) the proposed borrowing date, which shall be a Business Day, (ii) the aggregate amount of the requested Competitive Bid Loans, which shall not be less than $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000, (iii) the interest period for each Competitive Bid Loan ("Loan Period"), which shall commence on the applicable borrowing date and end on a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested Lender pursuant to each Competitive Bid), and the last day of each such Loan Period, and (iv) if more than one Loan Period is so specified, the principal amount allocable to each such Loan Period.
(b) Each Bank in its sole discretion may (but is not obligated to) submit one or more Competitive Bids to the Company not later than 11:00 a.m., Milwaukee time, on the proposed borrowing date specified in such request for Competitive Bids (such 11:00 a.m. time being herein called the "Submission Deadline") by facsimile or in writing, and thereby irrevocably offer to make all or any part (any such part referred to as a "Portion") of any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids may be delivered by any Bank.
this paragraph (c) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent in the form of Part 3 to Exhibit 2.1 hereto on each Business Day on which there is any change in the aggregate outstanding principal amount of Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on such Business Dayirrevocable (absent manifest error).
(d) If The Agent shall promptly notify the Company accepts a Portion Borrower by telecopy of a proposed all the Competitive Bids made, the Competitive Bid Loan for a single Loan Period at Rate and the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any each Competitive Bid Loan or Portion offered Rate Advance in any respect of which a Competitive Bid, Bid was made and the Company must accept identity of the Lender that made each bid. The Agent shall send a copy of all Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period an no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts Borrower for its records as soon as practicable after completion of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make such Competitive Bid Loan (or Portions thereof) bidding process set forth in an aggregate principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banksthis Section 2.6.
(e) Not later than 1:30 p.m.The Borrower may, Milwaukee timein its sole and absolute discretion, on subject only to the relevant borrowing dateprovisions of this paragraph (e), each Bank whose accept or reject any Competitive Bid was accepted referred to in paragraph (d) above. The Borrower shall notify the Agent by telephone, confirmed by telecopy in the Company shall make available to the Agent, in immediately available funds, the proceeds form of such Bank's a Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditionsAccept/Reject Letter, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, in immediately available funds.
(h) Section 2.2(b) of the Credit Agreement is amended by adding an additional subparagraph (3) thereto, reading in its entirety as follows:whether and to what extent it
Appears in 1 contract
Samples: Credit Agreement (Rock Tenn Co)
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 Subject to and 1.2 pursuant to the competitive bid procedures set forth in the Section 1.10 ("Competitive Bid Loans"), subject to upon the terms and conditions herein set forth, each Bank severally agrees that any Borrower may incur a Competitive Bid Loan in Dollars or in an Alternative Currency pursuant to a Notice of Competitive Bid Borrowing from time to time on and after the Effective Date and prior to the date which is the Business Day preceding the date which is 30 days prior to the Termination Date, provided that the aggregate principal amount of all Loans outstanding hereunder denominated in Dollars together with the Currency Equivalent in Dollars of all Loans denominated in Alternative Currencies, after giving effect to the Loan so requested and all other Loans then requested which have not yet been funded, will not exceed the Total Commitment then in effect. The determination required by the immediately preceding sentence shall be made by the Administrative Agent in accordance with the last paragraph of Section 1.1 or 1.1 (as 2.01(a). Within the case may be), except as otherwise provided foregoing limits and subject to the conditions set forth in this Section 1.10. Each Bank may make such Agreement, Competitive Bid Loans to may be repaid and reborrowed in accordance with the Company, subject to the terms and conditions provisions hereof, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of Competitive Bid Loans made against the Aggregate Commitment shall reduce each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Competitive Bid Loan made under the Demand Line on any Funding Date shall be due in Dollars, or in the requested Alternative Currency, in an aggregate minimum amount of $10,000,000 (or the Currency Equivalent thereof in any Alternative Currency) and payable upon demand in accordance with integral multiples in the terms case of this AgreementLoans denominated in Dollars, notwithstanding any of the terms $1,000,000 in excess of such Competitive Bid Loan. The procedure for making Competitive Bid amount and, in the case of Loans shall be as follows:denominated in an Alternative Currency, in integral multiples of 1,000,000 units.
(a) The Whenever the Company may make requests for bids from the Banks or a Subsidiary Borrower desires to make incur a Competitive Bid Loans ("Competitive Bids") not later than 9:00 a.m.Loan, Milwaukee time, on it shall in the proposed borrowing date for one or more Competitive Bid Loans. Each such request shall be given directly to each case of the Banks, shall be given in writing (which may be a facsimile transmission) signed by the Company, deliver to the Administrative Agent and each Bank, and in the case of a Subsidiary Borrower, deliver to the Company (which shall deliver to the Administrative Agent and each Bank), a Notice of Competitive Bid Borrowing, such notice to specify (I) in each case the date of the proposed borrowing dateCompetitive Bid Loan(s), which shall be a Business Day, (ii) the aggregate amount of the requested proposed Competitive Bid LoansLoan(s), which shall not be less than $1,000,000 or, the maturity date for amounts in excess thereof, an integral multiple repayment of $100,000, (iii) the interest period for each Competitive Bid Loan to be made as part of such Competitive Bid Loans ("Loan Period"each of which maturity dates may not be later than the Business Day prior to the Termination Date), the currency of the proposed Competitive Bid Loan(s) (which shall commence on be Dollars or, in the applicable borrowing date and end on case of a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive BidLIBOR Auction, an Alternative Currency), the Account of the Borrower for such Loan(s), the interest payment date or dates relating thereto, whether the Competitive Bid Loan(s) are to be Competitive Bid Absolute Rate Loans or Competitive Bid LIBOR Loans, the aggregate principal amount of Loans outstanding in Dollars and in each Alternative Currency after giving effect to the proposed Competitive Bid Loan(s) and all other Loans then requested which have not yet been funded and any other terms to be applicable to such Competitive Bid Loan(s). A Notice of Competitive Bid Borrowing must be received no later than 11:00 A.M. (New York City time) on (i) the fifth Business Day prior to the date of the Borrowing proposed therein, in the case of a LIBOR Auction or (ii) the Business Day next preceding the date of Borrowing proposed therein, in the case of an Absolute Rate Auction. No Notice of Competitive Bid Borrowing shall be given earlier than three Business Days subsequent to the making of the last day of each such Loan Period, and (iv) if more than one Loan Period is so specified, the principal amount allocable to each such Loan PeriodCompetitive Bid Loan.
(b) Each Bank shall, if, in its sole discretion may (but is not obligated to) submit discretion, it elects to do so, irrevocably offer to make one or more Competitive Bids Bid Loans to the Company applicable Borrower as part of such proposed Competitive Bid Loan(s) by notifying the Company, not later than 11:00 a.m.(i) 2:00 P.M. (New York City time) on the fourth Business Day prior to the proposed date of Borrowing, Milwaukee in the case of a LIBOR Auction and (ii) 10:00 A.M. (New York City time, ) on the proposed borrowing date specified of Borrowing, in the case of an Absolute Rate Auction (each such request for Competitive Bids (such 11:00 a.m. time date being herein called the "Submission Deadline") by facsimile or in writing, and thereby irrevocably offer to make all or any part (any such part hereinafter referred to as a "PortionReply Date"), of (i) the minimum amount and maximum amount of any each Competitive Bid Loan described which such Bank would be willing to make as part of such proposed Competitive Bid Loan(s) (which amounts may, subject to the provisions of Section 2.02(a), exceed such Bank's Commitment); provided that the minimum amount of any Bank's bid shall be at least $5,000,000 (or, in the relevant request case of a Competitive Bid Loan denominated in an Alternative Currency, the Currency Equivalent thereof in such Alternative Currency), (ii) in the case of a LIBOR Auction, the margin above or below the applicable Eurocurrency Rate (the "Bid Margin") offered for each such Competitive Bids at Bid Loan, expressed as a fixed percentage (specified to the nearest 1/10,000th of 1%) to be added to or subtracted from such base rate and (iii) in the case of an Absolute Rate Auction, the rate of interest per annum (each a "Bid specified to the nearest 1/10,000th of 1%) (the " Absolute Rate") specified thereinoffered for each such Competitive Bid Loan. If any Bank shall not notify the Company, without reference before 2:00 P.M. or 10:00 a.m. (New York City time), as the case may be, on the Reply Date of its offer of a Competitive Bid Loan, such Bank shall be deemed not to the LIBOR Rate or other basis for interest rates, in be making an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple offer with respect to such Competitive Bids may be delivered by any BankBid Loan.
(c) The Company shall, in turn, before 11:00 A.M. (New York City time) on the third Business Day prior to the proposed date of Borrowing, in the case of a LIBOR Auction or the Reply Date, in the case of an Absolute Rate Auction either
(A) cancel such Competitive Bid Loan by giving the Administrative Agent and each Bank notice to that effect (whereupon such Competitive Bid Loan will not be made), or
(B) accept one or more of the offers made by any Bank or Banks pursuant to Section 2.02(c), in its sole discretion but subject discretion, by giving notice to paragraph the Administrative Agent and such Bank of the amount of each Competitive Bid Loan (which amount shall be equal to or greater than the minimum amount, and equal to or less than the maximum amount, notified to the Company by such Bank or Banks for such Competitive Bid Loan pursuant to Section 2.02(c)) to be made by such Bank as part of such Competitive Bid Loan, and reject any remaining offers made by Banks pursuant to Section 2.02(c) above by giving the Administrative Agent and such Bank notice to that effect.
(d) belowOn the Funding Date of each Competitive Bid Loan, irrevocably accept or reject any each Bank required to participate therein will make available its share of such Competitive Bid Loan (or as specified in Section 2.02(d)) by causing funds in such amount to be credited to the Account of the Borrower in same day funds (or, in the case of any Portion thereofAlternative Currency, in such funds as may then be customary for the settlement of international transactions in such Alternative Currency) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone Noon (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent local time in the form of Part 3 to Exhibit 2.1 hereto on each Business Day on city in which there the Borrower's Account is any change in the aggregate outstanding principal amount of Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on such Business Day.
(d) If the Company accepts a Portion of a proposed Competitive Bid Loan for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period an no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make such Competitive Bid Loan (or Portions thereof) in an aggregate principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Bankslocated).
(e) Not later than 1:30 p.m., Milwaukee time, Each Competitive Bid Loan shall be payable on the relevant borrowing date, each Bank whose maturity date specified in the Notice of Competitive Bid was accepted by the Company shall make available Borrowing relating to the Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, in immediately available fundsLoan.
(h) Section 2.2(b) of the Credit Agreement is amended by adding an additional subparagraph (3) thereto, reading in its entirety as follows:
Appears in 1 contract
Samples: Credit Agreement (Textron Inc)
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 and 1.2 pursuant to the competitive bid procedures set forth in the Section 1.10 ("Competitive Bid Loans"), subject a) Subject to the terms and conditions of Section 1.1 or 1.1 (as set forth herein, from time to time during the case may be), except as otherwise provided in this Section 1.10. Each Bank may make such Competitive Bid Loans to the Company, subject to the terms and conditions hereof, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1Availability Period, the Borrower may request Competitive Bids for Competitive Loans denominated in dollars and may (but shall not have any obligation to) accept Competitive Bids and borrow Competitive Loans; provided that the aggregate outstanding principal amount of outstanding Competitive Bid Loans made against at any time shall not exceed an
(i) the Aggregate Commitment shall reduce each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any aggregate amount of the terms requested Borrowing;
(ii) the date of such Competitive Bid Loan. The procedure for making Competitive Bid Loans shall be as follows:
(a) The Company may make requests for bids from the Banks to make Competitive Bid Loans ("Competitive Bids") not later than 9:00 a.m., Milwaukee time, on the proposed borrowing date for one or more Competitive Bid Loans. Each such request shall be given directly to each of the Banks, shall be given in writing (which may be a facsimile transmission) signed by the Company, and shall specify (I) the proposed borrowing dateBorrowing, which shall be a Business Day, ;
(iiiii) whether such Borrowing is to be a Eurodollar Borrowing or a Fixed Rate Borrowing;
(iv) the aggregate amount of the requested Competitive Bid LoansInterest Period to be applicable to such Borrowing, which shall not be less than $1,000,000 or, for amounts in excess thereof, an integral multiple a period contemplated by the definition of $100,000, the term "Interest Period"; and
(iiiv) the interest period for each Competitive Bid Loan ("Loan Period")location and number of the Borrower's account to which funds are to be disbursed, which shall commence on comply with the applicable borrowing date and end on requirements of Section 2.2. Promptly following receipt of a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day of each such Loan Period, and (iv) if more than one Loan Period is so specifiedBid Request in accordance with this Section, the principal amount allocable Administrative Agent shall notify the Lenders of the details thereof by telecopy, inviting the Lenders to each such Loan Periodsubmit Competitive Bids.
(b) Each Bank in its sole discretion Lender may (but is shall not obligated have any obligation to) submit make one or more Competitive Bids to the Company Borrower in response to a Competitive Bid Request. Each Competitive Bid by a Lender must be in a form approved by the Administrative Agent and must be received by the Administrative Agent by telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 11:00 9:30 a.m., Milwaukee New York City time, on three Business Days before the proposed borrowing date specified in of such request for Competitive Bids (such 11:00 a.m. time being herein called the "Submission Deadline") by facsimile or in writingBorrowing, and thereby irrevocably offer to make all or any part (any such part referred to as a "Portion") of any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids may be delivered by any Bank.case
(c) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Administrative Agent shall promptly notify the Borrower by telecopy of the Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank Rate and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for principal amount specified in each Competitive Bid Loan. The Company will give written notice to and the Agent in identity of the form of Part 3 to Exhibit 2.1 hereto on each Business Day on which there is any change in the aggregate outstanding principal amount of Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans Lender that shall have made on such Business Day.
(d) If the Company accepts a Portion of a proposed Competitive Bid Loan for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period an no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make such Competitive Bid Loan (or Portions thereof) in an aggregate principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banks.
(e) Not later than 1:30 p.m., Milwaukee time, on the relevant borrowing date, each Bank whose Competitive Bid was accepted by the Company shall make available to the Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, in immediately available funds.
(h) Section 2.2(b) of the Credit Agreement is amended by adding an additional subparagraph (3) thereto, reading in its entirety as follows:
Appears in 1 contract
Samples: Credit Agreement (Bisys Group Inc)
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 and 1.2 pursuant to the competitive bid procedures (a) Either Borrower may, as set forth in the Section 1.10 ("Competitive Bid Loans"), subject to the terms and conditions of Section 1.1 or 1.1 (as the case may be), except as otherwise provided in this Section 1.10. Each Bank may make such Competitive Bid Loans to the Company2.13, subject to the terms and conditions hereof, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of Competitive Bid Loans made against the Aggregate Commitment shall reduce each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any of the terms of such Competitive Bid Loan. The procedure for making Competitive Bid Loans shall be as follows:
(a) The Company may make requests for bids from request the Banks to make offers to make Eurodollar Market Loans or Absolute Rate Loans to such Borrower in Dollars. The Banks may, but shall have no obligation to, make such offers and such Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section 2.13. Competitive Bid Loans may be Eurodollar Market Loans or Absolute Rate Loans (each a "Type" of Competitive Bids"Bid Loan), provided that (i) not later there may be no more than 9:00 a.m., Milwaukee time, on fifteen (15) different Interest Periods for all Loans outstanding at the proposed borrowing date for one or more same time and (ii) the aggregate unpaid principal amount of all Competitive Bid Loans. Each , together with the aggregate unpaid principal amount of all Syndicated Loans and Swingline Loans, the aggregate Face Amount of all Commercial Paper outstanding and the aggregate principal amount of all Unpaid Drawings, at any one time outstanding shall not exceed the Total Commitment at such time.
(b) When a Borrower wishes to request offers to make Competitive Bid Loans, such Borrower shall be given directly to each of give the Administrative Agent (which shall promptly notify the Banks, shall ) notice in the form of Exhibit L hereto (a "Competitive Bid Quote Request") so as to be given in writing received no later than 11:00 a.m. (which may be a facsimile transmissionNew York time) signed by the Company, and shall specify on (Ix) the fourth Business Day prior to the date of Credit Agreement borrowing proposed therein in the case of a Eurodollar Auction or (y) the Business Day preceding the date of borrowing dateproposed therein, in the case of an Absolute Rate Auction, specifying:
(i) the name of such Borrower and the proposed date of such borrowing (a "Competitive Bid Borrowing"), which shall be a Business Day, ;
(ii) the aggregate amount of the requested such Competitive Bid LoansBorrowing, which shall not be less than at least $1,000,000 or, for amounts in excess thereof, 5,000,000 (or an integral multiple of $100,000, 1,000,000 in excess thereof);
(iii) whether the Competitive Bid Quotes requested are to set forth a Competitive Bid Margin or a Competitive Bid Rate; and
(iv) the duration of the Interest Period applicable thereto (each, together with each of the interest period periods for each Competitive Bid Loan (Syndicated Loans as provided in Section 2.09, an "Loan Interest Period")) which, which in the case of a Eurodollar Auction, shall be one, two, three, six, nine or twelve months, as selected by such Borrower, and, in case of an Absolute Rate Auction shall be such number of days not less than seven nor more than 180 that are selected by the Borrower; provided that (i) the Interest Period for any Eurodollar Market Loan shall commence on the applicable borrowing date and of Borrowing of such Loan; (ii) if any Interest Period relating to a Eurodollar Market Loan begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar month; (iii) if any Interest Period would otherwise expire on a specified date thereafter day which is not exceeding 180 days from a Business Day, such borrowing date Interest Period shall expire on the next succeeding Business Day; provided, however, that if any Interest Period for a Eurodollar Market Loan would otherwise expire on a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day; and (iv) no Interest Period shall extend beyond the Commitment Termination Date. A Borrower may request offers to make Competitive Bid Loans for up to three (3) Loan different Interest Periods may be requested pursuant to each in a single Competitive Bid), and Bid Quote Request; provided that the last day of each such Loan Period, and (iv) if more than one Loan Period is so specified, the principal amount allocable to each such Loan Period.
(b) Each Bank in its sole discretion may (but is not obligated to) submit one or more Competitive Bids to the Company not later than 11:00 a.m., Milwaukee time, on the proposed borrowing date specified in such request for each separate Interest Period shall be deemed to be a separate Competitive Bids (such 11:00 a.m. time being herein called Bid Quote Request for a separate Competitive Bid Borrowing. Except as otherwise provided in the "Submission Deadline") by facsimile or in writingpreceding sentence, and thereby irrevocably offer to make all or any part (any such part referred to as a "Portion") no Competitive Bid Quote Request shall be given within four Business Days of any other Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000Quote Request. Multiple Competitive Bids may be delivered by any Bank.Credit Agreement
(c) The Company shall(i) Any Bank may, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Administrative Agent in the form of Part 3 to Exhibit 2.1 M hereto on each Business Day on which there is any change in the aggregate outstanding principal amount of (a "Competitive Bid LoansQuote"), setting forth the aggregate principal amount of all submit an offer to make a Competitive Bid Loans then outstanding after giving effect Loan in response to any Competitive Bid Loans made Quote Request; provided that, if the request under Section 2.13(b) specified more than one Interest Period, such Bank may make a single submission containing a separate offer for each such Interest Period and each such separate offer shall be deemed to be a separate Competitive Bid Quote. Each Competitive Bid Quote must be submitted to the Administrative Agent not later than (x) 2:00 p.m. (New York time) on such the fourth Business Day.
(d) If Day prior to the Company accepts a Portion proposed date of borrowing, in the case of a Eurodollar Auction or (y) 9:30 a.m. (New York time) on the proposed Competitive Bid Loan for a single Loan Period at date of borrowing, in the Bid case of an Absolute Rate Auction; provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts that any Competitive Bid Loan Quote submitted by ABN AMRO (or Portion offered its Applicable Lending Office) may be submitted, and may only be submitted, if ABN AMRO (or such Applicable Lending Office) notifies the relevant Borrower of the terms of the offer contained therein not later than (x) 1:45 p.m. (New York time) on the fourth Business Day prior to the proposed date of borrowing, in the case of a Eurodollar Auction or (y) 9:15 a.m. (New York time) on the proposed date of borrowing, in the case of an Absolute Rate Auction. Subject to Sections 2.10, 6 and 10, any Competitive Bid, Bid Quote so made shall be irrevocable except with the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon written consent of the successively lowest Bid Rates within each Loan Period an no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make such Competitive Bid Loan (or Portions thereof) in an aggregate principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banks.
(e) Not later than 1:30 p.m., Milwaukee time, Administrative Agent given on the relevant borrowing date, each Bank whose Competitive Bid was accepted by the Company shall make available to the Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment instructions of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, in immediately available fundsBorrower.
(h) Section 2.2(b) of the Credit Agreement is amended by adding an additional subparagraph (3) thereto, reading in its entirety as follows:
Appears in 1 contract
Samples: Credit Agreement (Omnicom Group Inc)
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 and 1.2 (a) In addition to making Revolving Loans pursuant to the competitive bid procedures Revolving Credit Commitments pursuant to Section 2.1. above, the Lenders may, in their sole discretion and at the request of the Borrower, make Competitive Bid Rate Advances to the Borrower in an amount not to exceed the Available Revolving Credit Commitment.
(b) In order to request Competitive Bids, the Borrower shall telecopy to the Agent a duly completed Competitive Bid Request in the form of Exhibit D attached hereto to be received by Agent no later than 11:00 a.m. (Nashville, Tennessee time), three (3) Business Days prior to the proposed Competitive Bid Loan or Loans. A Competitive Bid Request that does not conform substantially to the format of Exhibit D may be rejected in the Agent's sole discretion, and the Agent shall notify the Borrower of such rejection by telecopy not later than 1:00 p.m. (Nashville, Tennessee time) on the date of receipt. The Competitive Bid Request shall in each case refer to this Agreement and specify (i) the date of such Borrowing or Borrowings (which shall be a Business Day) and (ii) the aggregate principal amount thereof which shall be in a minimum principal amount of $5,000,000 and in an integral multiple of $1,000,000, and (iii) subject to Section 3.4. herein, the Interest Period requested with respect thereto. Promptly after its receipt of a Competitive Bid Request that is not rejected as aforesaid, the Agent shall invite by telecopy (substantially in the form set forth in Exhibit E attached hereto) the Section 1.10 ("Competitive Bid Loans")Lenders to bid, subject to the terms and conditions of Section 1.1 or 1.1 (as the case may be)this Agreement, except as otherwise provided in this Section 1.10. Each Bank may to make such Competitive Bid Loans Rate Advances pursuant to the Company, subject to the terms and conditions hereof, Competitive Bid Request. The Borrower may not make more than two (2) Competitive Bid Requests in such amounts as such Bankany seven (7) consecutive Business Days.
(c) Each Lender may, in its sole discretion, desires make one or more Competitive Bids (but not more than two) to the Borrower responsive to a Competitive Bid Request. Each Competitive Bid by a Lender must be received by the Agent via telecopy, substantially in the form of Exhibit F attached hereto, not later than 9:30 a.m. (Nashville, Tennessee time) on the Business Day of the proposed Competitive Bid Loan. Multiple bids (not to exceed two per Lender) will be accepted by the Agent. Competitive Bids that do not conform substantially to the format of Exhibit F may be rejected by the Agent acting in consultation with the Borrower, and the Agent shall notify the Lender making such nonconforming bid of such rejection as soon as practicable. Each Competitive Bid shall refer to this Agreement and specify (i) the principal amount (which shall be in a minimum principal amount of $5,000,000 and in an integral multiple of $1,000,000) of the Competitive Bid Rate Advance or Advances that the Lender is willing to make to the Company. Notwithstanding any contrary provision of Section 1.1Borrower, (ii) the aggregate outstanding amount of Competitive Bid Loans made against Rate or Rates at which the Aggregate Commitment shall reduce each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Lender is prepared to make the Competitive Bid LoansRate Advance or Advances, and (iii) the Interest Period and the last day thereof. Any If any Lender shall elect not to make a Competitive Bid, such Lender shall so notify the Agent via telecopy by the time specified above for submitting a Competitive Bid; provided, however, that failure by any Lender to give such notice shall not cause such Lender to be obligated to make any Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any of the terms Rate Advance as part of such Competitive Bid Loan. The procedure for making A Competitive Bid Loans submitted by a Lender pursuant to this paragraph (c) shall be as follows:irrevocable (absent manifest error).
(ad) The Company may make requests for bids from Agent shall promptly notify the Banks to make Borrower by telecopy of all the Competitive Bids made, the Competitive Bid Loans Rate and the principal amount of each Competitive Bid Rate Advance in respect of which a Competitive Bid was made and the identity of the Lender that made each bid. The Agent shall send a copy of all Competitive Bids to the Borrower for its records as soon as practicable after completion of the bidding process set forth in this Section 2.4.
("e) The Borrower may, in its sole and absolute discretion, subject only to the provisions of this paragraph (e), accept or reject any Competitive Bids"Bid referred to in paragraph (d) above. The Borrower shall notify the Agent by telephone, confirmed by tele-copy in the form of a Competitive Bid Accept/Reject Letter, whether and to what extent it has decided to accept or reject any of or all the bids referred to in paragraph (d) above not later than 9:00 a.m.11:30 a.m. (Nashville, Milwaukee Tennessee time, ) on the Business Day of the proposed borrowing date for one or more Competitive Bid Loans. Each Loan; provided, however, that (i) the failure by the Borrower to give such request notice shall be given directly deemed to each of the Banks, shall be given in writing (which may be a facsimile transmissionrejection of all the bids referred to in paragraph (d) signed by the Company, and shall specify (I) the proposed borrowing date, which shall be a Business Dayabove, (ii) the Borrower shall not accept a bid made at a particular Competitive Bid Rate if the Borrower has decided to reject a bid made at a lower Competitive Bid Rate with respect to the same requested Advance, (iii) the aggregate amount of the requested Competitive Bids accepted by the Borrower shall not exceed the principal amount specified in the Competitive Bid LoansRequest,
(iv) if the Borrower shall accept a bid or bids made at a particular Competitive Bid Rate but the amount of such bid or bids shall cause the total amount of bids to be accepted by the Borrower to exceed the amount specified in the Competitive Bid Request, then the Borrower shall accept a portion of such bid or bids in an amount equal to the amount specified in the Competitive Bid Request less the amount of all other Competitive Bids accepted with respect to such Competitive Bid Request, which acceptance, in the case of multiple bids at the same Competitive Bid Rate, shall not be less than made pro rata in accordance with the amount of each such bid at such Competitive Bid Rate, and (v) except pursuant to clause (iv) above, no bid shall be accepted for a Competitive Bid Loan unless such Competitive Bid Loan is in a minimum principal amount of $1,000,000 or, for amounts in excess thereof, 5,000,000 and an integral multiple of $100,0001,000,000; provided further, (iii) the interest period for each however, that if a Competitive Bid Loan ("Loan Period"), which shall commence on must be in an amount less than $5,000,000 because of the applicable borrowing date and end on a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day provisions of each such Loan Period, and clause (iv) if more than one Loan Period is so specifiedabove, the principal amount allocable to each such Loan Period.
(b) Each Bank in its sole discretion may (but is not obligated to) submit one or more Competitive Bids to the Company not later than 11:00 a.m., Milwaukee time, on the proposed borrowing date specified in such request for Competitive Bids (such 11:00 a.m. time being herein called the "Submission Deadline") by facsimile or in writing, and thereby irrevocably offer to make all or any part (any such part referred to as a "Portion") of any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids may be delivered by any Bank.
(c) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent in the form of Part 3 to Exhibit 2.1 hereto on each Business Day on which there is any change in the aggregate outstanding principal amount of Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on such Business Day.
(d) If the Company accepts a Portion of a proposed Competitive Bid Loan for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period an no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make such Competitive Bid Loan (or Portions thereof) in an aggregate principal amount of $1,000,000, or may be for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 andor any integral multiple thereof, if greater than and in calculating the pro rata allocation of acceptances of portions of multiple bids at a particular Competitive Bid Rate pursuant to clause (iv) above, the amounts shall be rounded to integral multiples of $1,000,000 in a manner which shall be in the nearest multiple discretion of $100,000the Borrower. A notice given by the Borrower pursuant to this paragraph (e) shall be irrevocable.
(f) The Agent shall promptly notify each bidding Lender whether or not its Competitive Bid has been accepted (and if so, or select in what amount and at what Competitive Bid Rate) by telecopy sent by the Agent, and each successful bidder will thereupon become bound, subject to the other applicable conditions hereof, to make the Competitive Bid Loan in respect of only one of such Bankswhich its bid has been accepted.
(eg) Not later No more than 1:30 p.m., Milwaukee time, on the relevant borrowing date, each Bank whose two (2) Competitive Bid was accepted Requests shall be made by the Company shall make available to the Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, in immediately available fundsBorrower within any seven (7) consecutive Business Days.
(h) If the Agent shall elect to submit a Competitive Bid in its capacity as a Lender, it shall submit such bid directly to the Borrower one half of an hour earlier than the time at which the other Lenders are required to submit their bids to the Agent pursuant to paragraph (c) above.
(i) Each Lender participating in any Competitive Bid Loan shall make its Competitive Bid Rate Advance available to the Agent on the date specified in the Bid Request at the time and in the manner and subject to the provisions specified in Section 2.2(b3.2.
(j) The proceeds of each of the Credit Agreement is amended Competitive Bid Loans shall be used by adding an additional subparagraph the Borrower for acquisitions, capital expenditures and as working capital, stock redemption, and for other general corporate purposes of the Borrower and other Consolidated Companies.
(3k) thereto, reading in Any Lender's Competitive Bid Rate Advance shall not reduce such Lender's obligation to lend its entirety as follows:share of the remaining unused Commitments.
Appears in 1 contract
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 and 1.2 pursuant (a) In addition to Revolving Credit Loans, at any time prior to the competitive bid procedures Revolving Credit Termination Date and provided no Default or Event of Default exists hereunder, the Borrowers may, as set forth in the Section 1.10 ("Competitive Bid Loans"), subject to the terms and conditions of Section 1.1 or 1.1 (as the case may be), except as otherwise provided in this Section 1.10. Each Bank may 2.02, request the Lenders to make such offers to make Competitive Bid Loans to the CompanyBorrowers in Dollars. The Lenders may, subject to but shall have no obligation to, make such offers and the terms Borrowers may, but shall have no obligation to, accept any such offers in the manner set forth in this Section 2.02. There may be no more than twenty (20) different Interest Periods, plus one (1) one week Interest Period for both Revolving Credit Loans and conditions hereof, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of Competitive Bid Loans made against outstanding at the Aggregate Commitment shall reduce same time (for which purpose Interest Periods for each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Eurodollar Loan and each Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any of the terms of such Competitive Bid Loandeemed to be different Interest Periods even if they are coterminous). The procedure for making aggregate principal amount of all Outstanding Credit Obligations, shall not exceed the Total Revolving Credit Commitment at any time. The aggregate principal amount of all outstanding Competitive Bid Loans shall be as follows:not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any time.
(ab) When either Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative Agent and the Lenders notice (a "Competitive Bid Quote Request") to be received no later than 11:00 a.m. Charlotte, North Carolina time on (A) the fourth Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrowers and the Administrative Agent, with the consent of the Required Lenders, may agree). The Company Borrowers may make requests for bids from the Banks request offers to make Competitive Bid Loans for up to three (3) different Interest Periods in a single notice; provided that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate borrowing (a "Competitive BidsBid Borrowing") and there shall not later be outstanding at any one time more than 9:00 a.m., Milwaukee time, on the proposed borrowing date for one or more six (6) Competitive Bid LoansBorrowings. Each such request Competitive Bid Quote Request shall be given directly to each substantially in the form of the Banks, shall be given in writing (which may be a facsimile transmission) signed by the Company, Exhibit I attached hereto and shall specify as to each Competitive Bid Borrowing:
(Ii) the proposed borrowing datedate of such borrowing, which shall be a Business Day, ;
(ii) the aggregate amount of the requested such Competitive Bid LoansBorrowing, which shall not be less than at least $10,000,000 (or in increments of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000, ) but shall not cause the limits specified in Section 2.02
(a) hereof to be violated;
(iii) the interest period for each Competitive Bid Loan ("Loan Period"), which shall commence on duration of the Interest Period applicable borrowing date and end on a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day of each such Loan Period, and thereto;
(iv) whether the Competitive Bid Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Eurodollar Competitive Rate;
(v) whether a Borrower shall have the right to prepay a requested Competitive Bid Loan; and
(vi) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the "Quotation Date"). Except as otherwise provided in this Section 2.02(b), no more than one Loan Period is so specifiedtwo (2) Competitive Bid Quote Requests shall be given within five (5) Business Days (or such other number of days as the Borrowers and the Administrative Agent, with the principal amount allocable to each such Loan Periodconsent of the Required Lenders, may agree) of any other Competitive Bid Quote Request.
(bi) Each Bank in its sole discretion Lender may (but is not obligated to) submit one or more Competitive Bids Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if the Borrower's request under Section 2.02(b) hereof specified more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the Company Borrowers not later than 11:00 a.m.9:30 a.m. Charlotte, Milwaukee time, North Carolina time on (A) the third Business Day prior to the proposed borrowing date specified of borrowing, in such request the case of a Competitive Bid Quote Request for Competitive Bids Bid Loans at the Eurodollar Competitive Rate or (such 11:00 a.m. time being herein called B) the "Submission Deadline") by facsimile or Quotation Date, in writingthe case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, and thereby irrevocably offer to make all or any part (in any such part referred to case, such other time and date as a "Portion"the Borrowers and the Administrative Agent, with the consent of the Required Lenders, may agree) of provided that if NationsBank is receiving quotes as provided in Section 2.02(g), any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids Quote may be delivered submitted by NationsBank (or its applicable Lending Office) only if NationsBank (or such applicable Lending Office) notifies the Borrowers of the terms of the offer contained therein not later than 9:15 a.m. Charlotte, North Carolina time on the Quotation Date. Subject to Articles IV, V and IX hereof, any BankCompetitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrowers.
(cii) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Each Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids Quote shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent substantially in the form of Part 3 to Exhibit 2.1 J attached hereto on each Business Day on which there is any change in and shall specify:
(A) the aggregate outstanding proposed date of borrowing and the Interest Period therefor;
(B) the principal amount of the Competitive Bid LoansLoan for which each such offer is being made, setting forth which principal amount shall be at least $5,000,000 (or in increments of $1,000,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any for which a Lender submits Competitive Bid Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested;
(C) in the case of a Competitive Bid Quote for Competitive Bid Loans made on at an Absolute Rate, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Business DayCompetitive Bid Loan (the "Absolute Rate");
(D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Eurodollar Competitive Rate, the positive or negative margin to be added to or deducted from the Interbank Offered Rate; and
(E) the identity of the quoting Lender. Unless otherwise agreed by the Administrative Agent and the Borrowers, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrowers of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made. Any subsequent Competitive Bid Quote submitted by a Lender that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request shall be disregarded by the Borrowers unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(d) If The Borrowers shall (A) in the Company accepts a Portion case of a proposed Competitive Bid Loan for at an Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 10:30 a.m. Charlotte, North Carolina time on the Quotation Date (or such other time and date as the Borrowers and the Administrative Agent, with the consent of the Required Lenders, may agree) or (B) in the case of a single Competitive Bid Loan Period at a Eurodollar Competitive Rate, the Bid Rate provided therefor in a Bank's Competitive Bidthird Business Day prior to the proposed date of borrowing), such Portion shall be in a notify the Administrative Agent and Lenders of (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (B) the respective principal amounts and Absolute Rates or Eurodollar Competitive Rates, as the case may be, so offered by each Lender (identifying the Lender that made each Competitive Bid Quote), and (C) its acceptance or nonacceptance of the Competitive Bid Quotes. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrowers may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $5,000,000 or in increments of $1,000,000 or, for amounts in excess thereof, ); provided that:
(i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request;
(ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or an integral multiple increment of $100,000. If 1,000,000 in excess thereof) but shall not cause the Company accepts limits specified in Section 2.02
(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes for any Interest Period may be made only in ascending order of Absolute Rates or Eurodollar Competitive Rates, as the case may be, beginning with the lowest rate so offered; and
(iv) the Borrowers may not accept any Competitive Bid Loan Quote where such Competitive Bid Quote fails to comply with Section 2.02(c)(ii) hereof or Portion offered in any Competitive Bidotherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.02(a) hereof). Any of the conditions above notwithstanding, the Company must Borrowers may, in their sole discretion, accept Competitive Bids (and a Competitive Bid Loans and Portions thereby offered) based exclusively upon Quote that does not contain the successively lowest Absolute Rate or Eurodollar Competitive Rates, as the case may be, where acceptance of the Competitive Bid Rates within each Loan Period an no other criteriaQuote containing the lowest Absolute Rate or Eurodollar Competitive Rate, as the case may be, would cause the principal amount of Outstanding Credit Obligations of a Lender or Lenders offering the lowest Absolute Rate or Eurodollar Competitive Rate, as the case may be, to exceed the Total Revolving Credit Commitment. If Competitive Bid Quotes are made by two (2) or more Banks submit Lenders with the same Absolute Rates or Eurodollar Competitive Bids with identical Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Rates Quotes are accepted for the same Loan related Interest Period and after the Company accepts acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Eurodollar Competitive Rates, as the case may be, offered by any thereofLender for such related Interest Period, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the principal amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make in respect of which such Competitive Bid Loan Quotes are accepted shall be allocated by the Borrowers among such Lenders as nearly as possible (in amounts of at least $1,000,000 or Portions in increments of $100,000 in excess thereof) in an proportion to the aggregate principal amount of $1,000,000, or for such Competitive Bid Quotes. Determinations by the Borrowers of the amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereofand the lowest bid after adjustment as provided in Section 2.02(d)(iii) allocated to such Bank or Banks as shall be conclusive in the Company shall select as necessary to a minimum absence of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banksmanifest error.
(e) Not Any Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:30 p.m.1:00 p.m. Charlotte, Milwaukee time, North Carolina time on the relevant borrowing datedate specified for the making of such Loan, each Bank whose Competitive Bid was accepted by make the Company shall make amount of such Loan available to the Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of applicable Borrower at the applicable borrowing conditions, Borrower's Account or otherwise as shall be directed by the Agent shall deposit Authorized Representative in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, Dollars and in immediately available funds.
(hf) Section 2.2(bFrom time to time, the Borrowers shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and maturities thereof.
(g) The Borrowers may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A) in the case of a Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 a.m., Charlotte, North Carolina time on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Eurodollar Competitive Rate, by 10:00 a.m. Charlotte, North Carolina time on the date a Competitive Quote is submitted, notify the Borrowers of the Credit Agreement terms of any Competitive Bid Quote submitted by a Lender that is amended in accordance with Section 2.02(c) hereof. The Administrative Agent's notice to the Borrowers shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or Eurodollar Competitive Rate, as the case may be, offered by adding an additional subparagraph each Lender (3identifying the Lender that made each Competitive Bid Quote). Not later than 10:30 a.m. Charlotte, North Carolina time on (A) theretothe third Business Day prior to the proposed date of borrowing, reading in its entirety the case of Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as follows:the Borrowers and the Administrative Agent, with the consent of the Required Lenders, may agree), the Borrowers shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrowers to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid Quotes, which each Borrower requires the Administrative Agent to issue pursuant to this paragraph (g), such Borrower shall pay to the Administrative Agent for the account of the Administrative Agent a bid administration fee of $1,500.00.
Appears in 1 contract
Samples: Credit Facilities and Reimbursement Agreement (Autonation Inc /Fl)
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 and 1.2 pursuant (a) In addition to Revolving Credit Loans, at any time prior to the competitive bid procedures Revolving Credit Termination Date and provided no Default or Event of Default exists hereunder, the Borrower may, as set forth in the Section 1.10 ("Competitive Bid Loans"), subject to the terms and conditions of Section 1.1 or 1.1 (as the case may be), except as otherwise provided in this Section 1.10. Each Bank may 2.2, request the Lenders to make such offers to make Competitive Bid Loans to the CompanyBorrower in Dollars. The Lenders may, subject to but shall have no obligation to, make such offers and the terms Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section 2.2. There may be no more than ten (10) Interest Periods, and conditions hereofno more than one (1) one-week Interest Periods, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of for all Revolving Credit Loans and Competitive Bid Loans made against outstanding at the Aggregate Commitment shall reduce same time (for which purpose Interest Periods for each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Eurodollar Loan and each Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any of the terms of such Competitive Bid Loandeemed to be different Interest Periods even if they are coterminous). The procedure for making aggregate principal amount of all Outstanding Credit Obligations shall not exceed the Total Revolving Credit Commitment at any time. The aggregate principal amount of all outstanding Competitive Bid Loans shall be as follows:not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any time.
(ab) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative Agent and the Lenders notice (a “Competitive Bid Quote Request”) to be received no later than 11:00 A.M. on (A) the fourth Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree). The Company Borrower may make requests for bids from the Banks request offers to make Competitive Bid Loans for up to three ("Competitive Bids"3) not later than 9:00 a.m., Milwaukee time, on different Interest Periods in a single notice; provided that the proposed borrowing date request for one or more each separate Interest Period shall be deemed to be a separate Competitive Bid LoansQuote Request for a separate borrowing (a “Competitive Bid Borrowing”) and there shall not be outstanding at any one time more than four (4) Competitive Bid Borrowings. Each such request Competitive Bid Quote Request shall be given directly to each substantially in the form of the Banks, shall be given in writing (which may be a facsimile transmission) signed by the Company, Exhibit G attached hereto and shall specify as to each Competitive Bid Borrowing:
(Ii) the proposed borrowing datedate of such borrowing, which shall be a Business Day, ;
(ii) the aggregate amount of the requested such Competitive Bid LoansBorrowing, which shall not be less than at least $10,000,000 (or in increments of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000, ) but shall not cause the limits specified in Section 2.2(a) hereof to be violated;
(iii) the interest period for each Competitive Bid Loan ("Loan Period"), which shall commence on duration of the Interest Period applicable borrowing date and end on a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day of each such Loan Period, and thereto;
(iv) whether the Competitive Bid Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Eurodollar Competitive Rate;
(v) whether the Borrower shall have the right to prepay a requested Competitive Bid Loan; and
(vi) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the “Quotation Date”). Except as otherwise provided in this Section 2.2(b), no more than one Loan Period is so specified, two (2) Competitive Bid Quote Requests shall be given within five (5) Business Days (or such other number of days as the principal amount allocable to each such Loan PeriodBorrower and the Administrative Agent may agree) of any other Competitive Bid Quote Request.
(bi) Each Bank in its sole discretion Lender may (but is not obligated to) submit one or more Competitive Bids Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if the Borrower’s request under Section 2.2(b) hereof specified more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the Company Borrower not later than 11:00 a.m., Milwaukee time, 9:30 A.M. on (A) the third Business Day prior to the proposed borrowing date specified of borrowing, in such request the case of a Competitive Bid Quote Request for Competitive Bids Bid Loans at the Eurodollar Competitive Rate or (such 11:00 a.m. time being herein called B) the "Submission Deadline") by facsimile or Quotation Date, in writingthe case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, and thereby irrevocably offer to make all or any part (in any such part referred to case, such other time and date as a "Portion"the Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree) of provided that if JPMorgan Chase Bank is receiving quotes as provided in Section 2.2(g), any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids Quote may be delivered submitted by any BankJPMorgan Chase Bank (or its applicable Lending Office) only if JPMorgan Chase Bank (or such applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than 9:15 A.M. on the Quotation Date. Any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrower.
(cii) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Each Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids Quote shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent substantially in the form of Part 3 to Exhibit 2.1 H attached hereto on each Business Day on which there is any change in and shall specify:
(A) the aggregate outstanding proposed date of borrowing and the Interest Period therefor;
(B) the principal amount of the Competitive Bid LoansLoan for which each such offer is being made, setting forth which principal amount shall be at least $5,000,000 (or in increments of $1,000,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any for which a Lender submits Competitive Bid Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested;
(C) in the case of a Competitive Bid Quote for Competitive Bid Loans made on at an Absolute Rate, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Business DayCompetitive Bid Loan (the “Absolute Rate”);
(D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Eurodollar Competitive Rate, the positive or negative margin to be added to or deducted from the Interbank Offered Rate; and
(E) the identity of the quoting Lender. Unless otherwise agreed by the Administrative Agent and the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made. Any subsequent Competitive Bid Quote submitted by a Lender that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request shall be disregarded by the Borrower unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(d) If The Borrower shall (A) in the Company accepts a Portion case of a proposed Competitive Bid Loan for at an Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 10:30 A.M. on the Quotation Date (or such other time and date as the Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree)) or (B) in the case of a single Competitive Bid Loan Period at a Eurodollar Competitive Rate, the Bid Rate provided therefor in a Bank's Competitive Bidthird Business Day prior to the proposed date of borrowing), such Portion shall be in a notify the Administrative Agent and Lenders of (x) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (y) the respective principal amounts and Absolute Rates or Eurodollar Competitive Rates, as the case may be, so offered by each Lender (identifying the Lender that made each Competitive Bid Quote), and (z) its acceptance or nonacceptance of the Competitive Bid Quotes. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $5,000,000 or in increments of $1,000,000 or, for amounts in excess thereof, ); provided that:
(i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request;
(ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or an integral multiple increment of $100,000. If 1,000,000 in excess thereof) but shall not cause the Company accepts limits specified in Section 2.2(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes for any Interest Period may be made only in ascending order of Absolute Rates or Eurodollar Competitive Rates, as the case may be, beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Loan Quote where such Competitive Bid Quote fails to comply with Section 2.2(c)(ii) hereof or Portion offered in any Competitive Bidotherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.2(a) hereof). Any of the conditions above notwithstanding, the Company must Borrower may, in its sole discretion, accept Competitive Bids (and a Competitive Bid Loans and Portions thereby offered) based exclusively upon Quote that does not contain the successively lowest Absolute Rate or Eurodollar Competitive Rates, as the case may be, where acceptance of the Competitive Bid Rates within each Loan Period an no other criteriaQuote containing the lowest Absolute Rate or Eurodollar Competitive Rate, as the case may be, would be less favorable to the Borrower or would cause the principal amount of Outstanding Credit Obligations of a Lender offering the lowest Absolute Rate or Eurodollar Competitive Rate, as the case may be, to exceed the Total Revolving Credit Commitment. If Competitive Bid Quotes are made by two (2) or more Banks submit Lenders with the same Absolute Rates or Eurodollar Competitive Bids with identical Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Rates Quotes are accepted for the same Loan related Interest Period and after the Company accepts acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Eurodollar Competitive Rates, as the case may be, offered by any thereofLender for such related Interest Period, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the principal amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make in respect of which such Competitive Bid Loan Quotes are accepted shall be allocated by the Borrower among such Lenders as nearly as possible (in amounts of at least $1,000,000 or Portions in increments of $100,000 in excess thereof) in an proportion to the aggregate principal amount of $1,000,000, or for such Competitive Bid Quotes. Determinations by the Borrower of the amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereofand the lowest bid after adjustment as provided in Section 2.2(d)(iii) allocated to such Bank or Banks as shall be conclusive in the Company shall select as necessary to a minimum absence of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banksmanifest error.
(e) Not Any Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:30 p.m., Milwaukee time, 1:00 P.M. on the relevant borrowing datedate specified for the making of such Loan, each Bank whose Competitive Bid was accepted by make the Company shall make amount of such Loan available to the Agent, Borrower as shall be directed by the Authorized Representative in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, Dollars and in immediately available funds.
(hf) Section 2.2(bFrom time to time, the Borrower shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and maturities thereof.
(g) The Borrower may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A) in the case of a Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 A.M. on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Eurodollar Competitive Rate, by 10:00 A.M. on the date a Competitive Quote is submitted, notify the Borrower of the Credit Agreement terms of any Competitive Bid Quote submitted by a Lender that is amended in accordance with Section 2.2(c) hereof. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or Eurodollar Competitive Rate, as the case may be, offered by adding an additional subparagraph each Lender (3identifying the Lender that made each Competitive Bid Quote). Not later than 10:30 A.M. on (A) theretothe third Business Day prior to the proposed date of borrowing, reading in its entirety the case of Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as follows:the Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree), the Borrower shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid Quotes which the Borrower requires the Administrative Agent to issue pursuant to this paragraph (g), the Borrower shall pay to the Administrative Agent for the account of the Administrative Agent a bid administration fee of $1,500.00.
Appears in 1 contract
Competitive Bid Loans. The Company may obtain loans under Sections 1.1 Subject to and 1.2 pursuant to the competitive bid procedures set forth in the Section 1.10 ("Competitive Bid Loans"), subject to upon the terms and conditions herein set forth, each Bank severally agrees that any Borrower may incur a Competitive Bid Loan in Dollars or in an Alternative Currency pursuant to a Notice of Competitive Bid Borrowing from time to time on and after the Effective Date and prior to the date which is the Business Day preceding the date which is 30 days prior to the Termination Date, provided that the aggregate principal amount of all Loans outstanding hereunder denominated in Dollars together with the Currency Equivalent in Dollars of all Loans denominated in Alternative Currencies, after giving effect to the Loan so requested and all other Loans then requested which have not yet been funded, will not exceed the Total Commitment then in effect. The determination required by the immediately preceding sentence shall be made by the Administrative Agent in accordance with the last paragraph of Section 1.1 or 1.1 (as 2.01(a). Within the case may be), except as otherwise provided foregoing limits and subject to the conditions set forth in this Section 1.10. Each Bank may make such Agreement, Competitive Bid Loans to may be repaid and reborrowed in accordance with the Company, subject to the terms and conditions provisions hereof, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of Competitive Bid Loans made against the Aggregate Commitment shall reduce each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Competitive Bid Loan made under the Demand Line on any Funding Date shall be due in Dollars, or in the requested Alternative Currency, in an aggregate minimum amount of $10,000,000 (or the Currency Equivalent thereof in any Alternative Currency) and payable upon demand in accordance with integral multiples in the terms case of this AgreementLoans denominated in Dollars, notwithstanding any of the terms $1,000,000 in excess of such Competitive Bid Loan. The procedure for making Competitive Bid amount and, in the case of Loans shall be as follows:denominated in an Alternative Currency, in integral multiples of 1,000,000 units.
(a) The Whenever the Company may make requests for bids from the Banks or a Subsidiary Borrower desires to make incur a Competitive Bid Loans ("Competitive Bids") not later than 9:00 a.m.Loan, Milwaukee time, on it shall in the proposed borrowing date for one or more Competitive Bid Loans. Each such request shall be given directly to each case of the Banks, shall be given in writing (which may be a facsimile transmission) signed by the Company, deliver to the Administrative Agent and each Bank, and in the case of a Subsidiary Borrower, deliver to the Company (which shall deliver to the Administrative Agent and each Bank), a Notice of Competitive Bid Borrowing, such notice to specify (I) in each case the date of the proposed borrowing dateCompetitive Bid Loan(s), which shall be a Business Day, (ii) the aggregate amount of the requested proposed Competitive Bid LoansLoan(s), which shall not be less than $1,000,000 or, the maturity date for amounts in excess thereof, an integral multiple repayment of $100,000, (iii) the interest period for each Competitive Bid Loan to be made as part of such Competitive Bid Loans ("Loan Period"each of which maturity dates may not be later than the Business Day prior to the Termination Date), the currency of the proposed Competitive Bid Loan(s) (which shall commence on be Dollars or, in the applicable borrowing date and end on case of a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive BidLIBOR Auction, an Alternative Currency), the Account of the Borrower for such Loan(s), the interest payment date or dates relating thereto, whether the Competitive Bid Loan(s) are to be Competitive Bid Absolute Rate Loans or Competitive Bid LIBOR Loans, the aggregate principal amount of Loans outstanding in Dollars and in each Alternative Currency after giving effect to the proposed Competitive Bid Loan(s) and all other Loans then requested which have not yet been funded and any other terms to be applicable to such Competitive Bid Loan(s). A Notice of Competitive Bid Borrowing must be received no later than 11:00 A.M. (New York City time) on (i) the fifth Business Day prior to the date of the Borrowing proposed therein, in the case of a LIBOR Auction or (ii) the Business Day next preceding the date of Borrowing proposed therein, in the case of an Absolute Rate Auction. No Notice of Competitive Bid Borrowing shall be given earlier than three Business Days subsequent to the making of the last day of each such Loan Period, and (iv) if more than one Loan Period is so specified, the principal amount allocable to each such Loan PeriodCompetitive Bid Loan.
(b) Each Bank shall, if, in its sole discretion may (but is not obligated to) submit discretion, it elects to do so, irrevocably offer to make one or more Competitive Bids Bid Loans to the Company applicable Borrower as part of such proposed Competitive Bid Loan(s) by notifying the Company, not later than 11:00 a.m.2:00 P.M. (New York City time) on the fourth Business Day prior to the proposed date of Borrowing, Milwaukee in the case of a LIBOR Auction and 10:00 A.M. (New York City time, ) on the proposed borrowing date specified of Borrowing, in the case of an Absolute Rate Auction (each such request for Competitive Bids (such 11:00 a.m. time date being herein called the "Submission Deadline") by facsimile or in writing, and thereby irrevocably offer to make all or any part (any such part hereinafter referred to as a "PortionReply Date"), of (i) the minimum amount and maximum amount of any each Competitive Bid Loan described which such Bank would be willing to make as part of such proposed Competitive Bid Loan(s) (which amounts may, subject to the provisions of Section 2.01(a), exceed such Bank's Commitment); provided that the minimum amount of any Bank's bid shall be at least $5,000,000 (or, in the relevant request case of a Competitive Bid Loan denominated in an Alternative Currency, the Currency Equivalent thereof in such Alternative Currency), (ii) in the case of a LIBOR Auction, the margin above or below the applicable Eurocurrency Rate (the "Bid Margin") offered for each such Competitive Bids at Bid Loan, expressed as a fixed percentage (specified to the nearest 1/10,000th of 1%) to be added to or subtracted from such base rate and (iii) in the case of an Absolute Rate Auction, the rate of interest per annum (each a specified to the nearest 1/10,000th of 1%) (the "Bid Absolute Rate") specified thereinoffered for each such Competitive Bid Loan. If any Bank shall not notify the Company, without reference before 2:00 P.M. or 10:00 a.m. (New York City time), as the case may be, on the Reply Date of its offer of a Competitive Bid Loan, such Bank shall be deemed not to the LIBOR Rate or other basis for interest rates, in be making an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple offer with respect to such Competitive Bids may be delivered by any BankBid Loan.
(c) The Company shall, in turn, before 11:00 A.M. (New York City time) on the third Business Day prior to the proposed date of Borrowing, in the case of a LIBOR Auction or the Reply Date, in the case of an Absolute Rate Auction either
(A) cancel such Competitive Bid Loan by giving the Administrative Agent and each Bank notice to that effect (whereupon such Competitive Bid Loan will not be made), or
(B) accept one or more of the offers made by any Bank or Banks pursuant to Section 2.02(c), in its sole discretion but subject discretion, by giving notice to paragraph the Administrative Agent and such Bank of the amount of each Competitive Bid Loan (which amount shall be equal to or greater than the minimum amount, and equal to or less than the maximum amount, notified to the Company by such Bank or Banks for such Competitive Bid Loan pursuant to Section 2.02(c)) to be made by such Bank as part of such Competitive Bid Loan, and reject any remaining offers made by Banks pursuant to Section 2.02(c) above by giving the Administrative Agent and such Bank notice to that effect.
(d) belowOn the Funding Date of each Competitive Bid Loan, irrevocably accept or reject any each Bank required to participate therein will make available its share of such Competitive Bid Loan (or as specified in Section 2.02(d)) by causing funds in such amount to be credited to the Account of the Borrower in same day funds (or, in the case of any Portion thereofAlternative Currency, in such funds as may then be customary for the settlement of international transactions in such Alternative Currency) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone Noon (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent local time in the form of Part 3 to Exhibit 2.1 hereto on each Business Day on city in which there the Borrower's Account is any change in the aggregate outstanding principal amount of Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on such Business Day.
(d) If the Company accepts a Portion of a proposed Competitive Bid Loan for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period an no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make such Competitive Bid Loan (or Portions thereof) in an aggregate principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Bankslocated).
(e) Not later than 1:30 p.m., Milwaukee time, Each Competitive Bid Loan shall be payable on the relevant borrowing date, each Bank whose maturity date specified in the Notice of Competitive Bid was accepted by the Company shall make available Borrowing relating to the Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, in immediately available fundsLoan.
(h) Section 2.2(b) of the Credit Agreement is amended by adding an additional subparagraph (3) thereto, reading in its entirety as follows:
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Competitive Bid Loans. The Company (a) Each Bank severally agrees that any Borrower may obtain loans make Competitive Borrowings under Sections 1.1 and 1.2 pursuant this Section 2.03 from time to time on any Business Day during the period from the date hereof until the date occurring 30 days prior to the competitive bid procedures then scheduled Termination Date in the manner set forth in below; provided that, following the making of each Competitive Borrowing, the aggregate principal amount of all Loans outstanding at such time shall not exceed the Total Commitment at such time (computed without regard to any Competitive Bid Reduction).
(i) Any Borrower may request a Competitive Borrowing under this Section 1.10 2.03 by delivering to the Administrative Agent, by telecopier or hand delivery, a notice of a Competitive Borrowing (a "Competitive Bid LoansRequest"), subject in substantially the form of Exhibit 2.03(A) hereto, specifying therein (A) the requested date of such proposed Competitive Borrowing (which shall be a Business Day), (B) the requested aggregate amount of such proposed Competitive Borrowing, (C) whether such proposed Competitive Borrowing shall consist of Fixed Rate Loans or Eurodollar Loans, (D) the requested currency of such proposed Competitive Borrowing, (E) in the case of a Competitive Borrowing consisting of (1) Eurodollar Loans, the requested Interest Period for each such Eurodollar Loan, and (2) Fixed Rate Loans, the requested maturity date for repayment of each such Fixed Rate Loan (which maturity date may not be earlier than the date occurring seven days after the date of such proposed Competitive Borrowing or later than the earlier of (x) 180 days after the date of such proposed Competitive Borrowing and (y) the Termination Date), (F) the requested interest payment date or dates for each Competitive Loan comprising part of such proposed Competitive Borrowing, (G) whether or not the Competitive Loans comprising such proposed Competitive Borrowing may be prepaid and, if so, whether with or without penalty, (H) the address and account number of such Borrower to which the proceeds of such proposed Competitive Borrowing are to be advanced and (I) the requested other terms, if any, to be applicable to such proposed Competitive Borrowing, not later than 10:00 a.m. (New York City time)
(1) at least one Business Day prior to the terms date of the proposed Competitive Borrowing, if such Borrower shall specify in the related Competitive Bid Request that the Competitive Loans to be offered by the Bank are to be Fixed Rate Loans and conditions that the Fixed Rate Loans comprising such proposed Competitive Borrowing shall be denominated in U.S. Dollars, (2) at least three Business Days prior to the date of Section 1.1 the proposed Competitive Borrowing, if such Borrower shall specify in the related Competitive Bid Request that the Loans comprising such proposed Competitive Borrowing shall be Fixed Rate Loans denominated in a Primary Currency and (3) at least four Business Days prior to the date of the proposed Competitive Borrowing if such Borrower shall specify in the related Competitive Bid Request that the Loans comprising such proposed Competitive Borrowing shall be Fixed Rate Loans denominated in an Alternate Currency or 1.1 (as are to be Eurodollar Loans; provided, however, that the case Borrowers may be), except as otherwise provided in this Section 1.10not request more than one Competitive Borrowing on any Business Day. Each Bank may make such Competitive Bid Loans to the CompanyRequest shall be irrevocable and
(ii) Each Bank may, subject to the terms and conditions hereof, in such amounts as such Bankif, in its sole discretion, desires it elects to make to the Company. Notwithstanding any contrary provision of Section 1.1do so, the aggregate outstanding amount of Competitive Bid Loans made against the Aggregate Commitment shall reduce each Bank's Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. Any Competitive Bid Loan made under the Demand Line shall be due and payable upon demand in accordance with the terms of this Agreement, notwithstanding any of the terms of such Competitive Bid Loan. The procedure for making Competitive Bid Loans shall be as follows:
(a) The Company may make requests for bids from the Banks to make Competitive Bid Loans ("Competitive Bids") not later than 9:00 a.m., Milwaukee time, on the proposed borrowing date for one or more Competitive Bid Loans. Each such request shall be given directly to each of the Banks, shall be given in writing (which may be a facsimile transmission) signed by the Company, and shall specify (I) the proposed borrowing date, which shall be a Business Day, (ii) the aggregate amount of the requested Competitive Bid Loans, which shall not be less than $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000, (iii) the interest period for each Competitive Bid Loan ("Loan Period"), which shall commence on the applicable borrowing date and end on a specified date thereafter not exceeding 180 days from such borrowing date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day of each such Loan Period, and (iv) if more than one Loan Period is so specified, the principal amount allocable to each such Loan Period.
(b) Each Bank in its sole discretion may (but is not obligated to) submit one or more Competitive Bids to the Company not later than 11:00 a.m., Milwaukee time, on the proposed borrowing date specified in such request for Competitive Bids (such 11:00 a.m. time being herein called the "Submission Deadline") by facsimile or in writing, and thereby irrevocably offer to make all or any part (any such part referred to as a "Portion") of any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids may be delivered by any Bank.
(c) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed borrowing date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent telecopier in the form of Part 3 to Exhibit 2.1 hereto on each Business Day on which there is any change in the aggregate outstanding principal amount of Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on such Business Day.
(d) If the Company accepts a Portion of a proposed Competitive Bid Loan for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period an no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make such Competitive Bid Loan (or Portions thereof) in an aggregate principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000 the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banks.
(e) Not later than 1:30 p.m., Milwaukee time, on the relevant borrowing date, each Bank whose Competitive Bid was accepted by the Company shall make available to the Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant borrowing date the proceeds of such Competitive Bid Loans, in immediately available funds.
(h) Section 2.2(b) of the Credit Agreement is amended by adding an additional subparagraph (3) thereto, reading in its entirety as follows:2.03
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Samples: Revolving Credit Agreement (Browning Ferris Industries Inc)
