Competitive Bid Loans. (a) In addition to Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date during which the conditions set forth in Section 2.03(b) below are satisfied, the Borrower may, as set forth in this Section 2.03, request the Lenders to make offers to make Competitive Bid Loans to the Borrower in Dollars. The Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers, in the manner set forth in this Section 2.03. The making of a Competitive Bid Loan by any Lender shall not reduce such Lender's Revolving Credit Commitment except as calculated based upon the Total Revolving Credit Commitment as reduced by such Competitive Bid Loan. Competitive Bid Outstandings, together with the sum of all other Outstandings, shall not exceed the Total Revolving Credit Commitment at any time. (b) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative Agent (which shall promptly notify the Lenders) either an Index Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time three (3) LIBOR Business Days prior to the date of borrowing proposed therein or an Absolute Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time one (1) Business Day prior to the date of borrowing proposed therein (or such other time and date as the Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree). The Borrower may request offers to make Competitive Bid Loans for up to four (4) different Interest Periods in a single notice (a "Competitive Bid Borrowing"). Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit I attached hereto and incorporated herein by reference and shall specify as to each Competitive Bid Borrowing: (i) the proposed date of such Competitive Bid Borrowing, which shall be a Business Day in the case of an Absolute Rate Bid Loan Request or a LIBOR Business Day in the case of an Index Rate Bid Loan Request; (ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least $5,000,000 (or in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated; (iii) the duration of the Interest Period or Interest Periods applicable thereto (which may be not less than 7 nor more than 360 days with respect to an Absolute Rate Competitive Bid Loan and which must be one, two, three, six or twelve months with respect to an Index Rate Competitive Bid Loan); and (iv) 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"). (i) Each Lender may submit one or more Competitive 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) 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 Administrative Agent not later than 10:00 a.m. Charlotte, North Carolina time 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) provided that any Competitive Bid Quote may be submitted by NationsBank only if NationsBank notifies the Borrower of the terms of the offer contained therein not later than 9:45 a.m. Charlotte, North Carolina time on the Quotation Date. Subject to Articles IV, V and IX hereof, any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrower. (d) Each Competitive Bid Quote shall be substantially in the form of Exhibit J attached hereto and incorporated herein by reference and shall specify: (i) the proposed date of borrowing and the Interest Periods applicable to all or each portion thereof; (ii) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount shall be at least $1,000,000 (or in integral multiples of $100,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans 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; (iii) the rate of interest offered for each such Competitive Bid Loan; and (iv) 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. 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 Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote. (e) The Administrative Agent shall 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), notify the Borrower in writing by facsimile of the terms of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.03(c) hereof. The Administrative Agent's notice to the Borrower shall specify (i) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (ii) the respective principal amount and interest rate so offered by each Lender (identifying the Lender that made each Competitive Bid Quote). As promptly as possible, the Administrative Agent shall forward to the Borrower copies of each Competitive Bid Quote submitted to the Administrative Agent. (f) Not later than 11:00 a.m. Charlotte, North Carolina time 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), the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance of the Competitive Bid Quotes so notified to it pursuant to Section 2.03(e) hereof (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. 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 a Competitive Bid Quote for the entire principal amount of the Competitive Bid Loan so offered or any portion thereof. The Borrower's acceptance of Competitive Bid Quotes is further subject to the following conditions: (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 in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated; (iii) except as provided below, acceptance of Competitive Bid Quotes may be made only in ascending order of interest rates beginning with the lowest rate so offered; and (iv) the Borrower may not accept any Competitive Bid Quotes where the Administrative Agent has correctly advised the Borrower that such Competitive Bid Quote fails to comply with Section 2.03(d) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.03(a) hereof). (g) If Competitive Bid Quotes are made by two or more Lenders with the same Absolute Rate or Index Rate, as applicable, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are permitted to be accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Index Rates, as applicable, offered by any Lender for such related Interest Period, 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 or in integral multiples of $100,000 in excess thereof) 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 as provided in Section 2.03(f)(iii) hereof shall be conclusive in the absence of manifest error. (h) Any Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:00 p.m. Charlotte, North Carolina time on the date specified for the making of such Loan, make the amount of such Loan available to the Administrative Agent at the Principal Office in Dollars and in immediately available funds, for account of the Borrower. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an account specified by the Borrower. (i) The parties hereto agree that each Competitive Bid Loan (as defined in the Prior Credit Agreement) advanced by a Lender under the Prior Credit Agreement and described on Schedule 2.03(i) hereto shall be deemed to be as of the Closing Date a Competitive Bid Loan hereunder and evidenced by such Lender's Competitive Bid Note.
Appears in 1 contract
Competitive Bid Loans. (a) In addition US Borrower may request that each Lender submit Competitive Bids (on a several basis) to Revolving Credit LoansUS Borrower on any Business Day during the US Facility Commitment Period, at any time prior to the Revolving Credit Termination Date during which the conditions set forth in Section 2.03(b) below provided that all Lenders are satisfied, the Borrower may, as set forth in this Section 2.03, request the Lenders requested to make offers to make Competitive Bid Loans to the Borrower in Dollars. The Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers, in the manner set forth in this Section 2.03. The making of a Competitive Bid Loan on the same basis at the same time. In order to request Competitive Bids, US Borrower shall deliver by any Lender shall hand or facsimile to US Agent a Competitive Bid Request, to be received by US Agent not reduce such Lender's Revolving Credit Commitment except as calculated based upon later than 9:00 a.m., Dallas, Texas time one Business Day before the Total Revolving Credit Commitment as reduced by such date specified for a proposed Competitive Bid Loan. A Competitive Bid OutstandingsRequest that does not conform substantially to the format of Exhibit H may be rejected in US Agent's sole discretion, together with the sum of all other Outstandings, shall not exceed the Total Revolving Credit Commitment at any time.
(b) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative and US Agent (which shall promptly notify the Lenders) either US Borrower of such rejection by facsimile. After receiving an Index Rate acceptable Competitive Bid Loan Request to be received Request, US Agent shall no later than 11:00 a.m. Charlotte12:00 noon, North Carolina Dallas, Texas time three (3) LIBOR Business Days prior to on the date of borrowing proposed therein or an Absolute Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time one (1) Business Day prior to the date of borrowing proposed therein (or such other time and date as the Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree). The Borrower may request offers to make Competitive Bid Loans for up to four (4) different Interest Periods in a single notice (a "Competitive Bid Borrowing"). Each such Competitive Bid Quote Request shall be is received by US Agent, by facsimile deliver to Lenders an Invitation to Bid substantially in the form of Exhibit I attached hereto and incorporated herein by reference and shall specify as with respect thereto.
(b) Each Lender may, in its sole discretion, make one or more Competitive Bids to US Agent responsive to each Competitive Bid BorrowingRequest given by US Borrower. Each Competitive Bid by a Lender must be received by US Agent by facsimile not later than 9:00 a.m., Dallas, Texas time on the date specified for a proposed Competitive Bid Loan. Multiple bids may be accepted by US Agent. Competitive Bids that do not conform substantially to the format of Exhibit J may be rejected by US Agent after conferring with, and upon the instruction of, US Borrower, and US Agent shall notify the bidding Lender of such rejection as soon as practicable. If any Lender shall elect not to make a Competitive Bid, such Lender shall so notify US Agent by facsimile not later than 9:00 a.m., Dallas, Texas time, on the date specified for a Competitive Bid Loan; 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 and by such failure such Lender shall be deemed to have rejected such Competitive Bid. A Competitive Bid submitted by a Lender shall be irrevocable.
(c) Promptly, and in no event later than 9:30 a.m., Dallas, Texas time, on the date specified for a proposed Competitive Bid Loan, US Agent shall notify US Borrower by facsimile of all the Competitive Bids made, the Competitive Bid Rate and the principal amount of each Competitive Bid Loan in respect of which a Competitive Bid was made, and the identity of each Lender that made each Competitive Bid. US Agent shall send a copy of all Competitive Bids to US Borrower for its records as soon as practicable after completion of the bidding process.
(d) US Borrower may, subject only to the provisions hereof, accept or reject any Competitive Bid. US Borrower shall notify US Agent by facsimile pursuant to a Competitive Bid Accept/Reject Letter whether and to what extent US Borrower has decided to accept or reject any or all of the Competitive Bids, not later than 10:00 a.m., Dallas, Texas time, on the date specified for a proposed Competitive Bid Loan; provided, however, that:
(i) the proposed date failure by US Borrower to accept or reject any Competitive Bid within the time period specified herein shall be deemed to be a rejection of such Competitive Bid Borrowing, which shall be a Business Day in the case of an Absolute Rate Bid Loan Request or a LIBOR Business Day in the case of an Index Rate Bid Loan Request;Bid,
(ii) the aggregate amount of such the Competitive Bids accepted by US Borrower shall not exceed the principal amount specified in the Competitive Bid Borrowing, which shall be at least $5,000,000 (or in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated; Request,
(iii) the duration aggregate amount of all outstanding US Loans and US LC Obligations shall never exceed the Interest Period or Interest Periods applicable thereto (which may be not less than 7 nor more than 360 days with respect to an Absolute Rate Competitive Bid Loan and which must be one, two, three, six or twelve months with respect to an Index Rate Competitive Bid Loan); andUS Maximum Credit Amount,
(iv) if US Borrower shall accept a Competitive Bid or Competitive Bids made at a particular Competitive Bid Rate, but the date on which amount of such Competitive Bid or Competitive Bids shall cause the total amount of Competitive Bids to be accepted by US Borrower to exceed the amount specified in the Competitive Bid Quotes are to be submitted if it is before the proposed date Request, then US Borrower shall accept a portion of borrowing (the date on which such Competitive Bid Quotes are or Competitive 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 Competitive Bids at such Competitive Bid Rate, shall be submitted is called made pro rata in accordance with the "Quotation Date").amount of each such Competitive Bid at such Competitive Bid Rate, and
(iv) Each Lender may submit one or more no Competitive Bid Quotes, each containing an offer to make shall be accepted for a Competitive Bid Loan in response to any unless such Competitive Bid Quote RequestLoan is in a minimum principal amount of US $5,000,000 or a higher integral multiple thereof; provided thatprovided, however, that if a Competitive Bid Loan must be in an amount less than US $5,000,000 because of the Borrower's request under Section 2.03(bprovisions of clause (iv) hereof specified more than one Interest Periodabove, such Lender may make a single submission containing one or more Competitive Bid Quotes Loan may be for each such Interest Period. Each a minimum of US $1,000,000 or any higher integral multiple thereof, and in calculating the pro rata allocation of acceptances or portions of multiple bids at a particular Competitive Bid Quote must be submitted Rate pursuant to clause (iv), the Administrative Agent not later than 10:00 a.m. Charlotte, North Carolina time 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) provided that any Competitive Bid Quote may be submitted by NationsBank only if NationsBank notifies the Borrower of the terms of the offer contained therein not later than 9:45 a.m. Charlotte, North Carolina time on the Quotation Date. Subject to Articles IV, V and IX hereof, any Competitive Bid Quote so made amounts shall be irrevocable except with rounded to integral multiples of US $1,000,000 in a manner which shall be in the consent sole and absolute discretion of the Administrative Agent given on the instructions of the US Borrower.
(de) Each Promptly on each date US Borrower accepts a Competitive Bid, US Agent shall notify each Lender whether or not its Competitive Bid Quote shall be substantially has been accepted (and if so, in what amount and at what Competitive Bid Rate) by facsimile transmission sent by US Agent, and each successful bidder will thereupon become bound, subject to the form of Exhibit J attached hereto and incorporated herein by reference and shall specify:
(i) the proposed date of borrowing and the Interest Periods other applicable conditions hereof, to all or each portion thereof;
(ii) the principal amount of make the Competitive Bid Loan for in respect of which its Competitive Bid has been accepted. After completing the notifications referred to in the immediately preceding sentence, US Agent shall notify each such offer is being made, which principal amount shall be at least $1,000,000 (or in integral multiples Lender of $100,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans for Bids accepted. Each Lender which is to make a Lender submits Competitive Bid Quotes may not exceed Loan shall, before 11:00 a.m., Dallas, Texas time, on the principal amount of borrowing date specified in the Competitive Bid Borrowing for a particular Interest Period for which offers were requested;
(iii) Request applicable thereto, make available to US Agent in immediately available funds the rate of interest offered for each such Competitive Bid Loan; and
(iv) 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. 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 Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(e) The Administrative Agent shall 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), notify the Borrower in writing by facsimile of the terms of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.03(c) hereof. The Administrative Agent's notice to the Borrower shall specify (i) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (ii) the respective principal amount and interest rate so offered by each Lender (identifying the Lender that made each Competitive Bid Quote). As promptly as possible, the Administrative Agent shall forward to the Borrower copies of each Competitive Bid Quote submitted Loan to be made by such Lender, and US Agent shall promptly deposit such funds to an account designated by US Borrower. As soon as practicable thereafter, US Agent shall notify each Lender of the Administrative Agentaggregate amount of Competitive Bid Loans advanced, the respective Competitive Bid Interest Periods thereof and Competitive Bid Rate applicable thereto.
(f) Not later than 11:00 a.m. CharlotteThe obligation of US Borrower to repay to each Lender the aggregate amount of all Competitive Bid Loans made by such Lender, North Carolina together with interest accruing in connection therewith, shall be evidenced by promissory notes (respectively, such Lender's "Competitive Bid Note") made by US Borrower payable to the order of such Lender in the form of Exhibit L, with appropriate insertions. The amount of principal owing on any Lender's Competitive Bid Note at any given time shall be the aggregate amount of all Competitive Bid Loans theretofore made by such Lender thereunder minus all payments of principal theretofore received by such Lender thereon. Interest on each Competitive Bid Note shall accrue and be due and payable as provided herein and therein. US Borrower shall repay 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), the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance final day of the Competitive Bid Quotes so notified to it pursuant to Section 2.03(e) hereof (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. 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 a Competitive Bid Quote for the entire principal amount of the Competitive Bid Loan so offered or any portion thereof. The Borrower's acceptance of Competitive Bid Quotes is further subject to the following conditions:
(i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth Loan (such date being that specified by US Borrower for repayment of such Competitive Bid Loan in the related Competitive Bid Quote Request;
(iiRequest and such date being no later than six months after the date of the Competitive Bid Loan) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes may be made only in ascending order of interest rates beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Quotes where the Administrative Agent has correctly advised the Borrower that such Competitive Bid Quote fails to comply with Section 2.03(d) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.03(a) hereof).
(g) If Competitive Bid Quotes are made by two or more Lenders with the same Absolute Rate or Index Rate, as applicable, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are permitted to be accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Index Rates, as applicable, offered by any Lender for such related Interest Period, 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 or in integral multiples of $100,000 in excess thereof) in proportion to the aggregate then unpaid principal amount of such Competitive Bid QuotesLoan. Determinations by Subject to Section 1.6 and the payment of amounts described in Section 3.6, US Borrower shall have the right to prepay any principal amount of the amounts of any Competitive Bid Loans and the lowest bid as provided in Section 2.03(f)(iii) hereof shall be conclusive in the absence of manifest errorLoan.
(hg) Any Lender whose offer to make any No Competitive Bid Loan has been accepted shall, not later than 1:00 p.m. Charlotte, North Carolina time on shall be made within five Business Days after the date specified for the making of such any other Competitive Bid Loan, make the amount of such Loan available unless US Borrower and US Agent shall mutually agree otherwise. If US Agent shall at any time elect to the Administrative Agent at the Principal Office in Dollars and in immediately available funds, for account of the Borrower. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an account specified by the Borrower.
(i) The parties hereto agree that each Competitive Bid Loan (as defined in the Prior Credit Agreement) advanced by a Lender under the Prior Credit Agreement and described on Schedule 2.03(i) hereto shall be deemed to be as of the Closing Date submit a Competitive Bid Loan hereunder and evidenced by in its capacity as a Lender, it shall submit such Lender's bid directly to US Borrower requesting such Competitive Bid Noteone quarter of an hour earlier than the latest time at which the other Lenders are required to submit their bids to US Agent.
Appears in 1 contract
Competitive Bid Loans. (a) In addition to Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date during which the conditions set forth in Section 2.03(b) below are satisfiedand provided no Default or Event of Default exists hereunder, the Borrower may, as set forth in this Section 2.032.5, request the Revolving Credit Lenders to make offers to make Competitive Bid Loans to the Borrower in Dollars. The Revolving Credit Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers, offers in the manner set forth in this Section 2.032.5. The making of a There may be no more than ten (10) Interest Periods, and no more than one (1) one-week Interest Periods, for all Revolving Credit Loans and Competitive Bid Loans outstanding at the same time (for which purpose Interest Periods for each EurodollarTerm Benchmark Revolving Credit Loan and each Competitive Bid Loan by any Lender shall be deemed to be different Interest Periods even if they are coterminous). The aggregate principal amount of all Outstanding Revolving Credit Obligations shall not reduce such Lender's Revolving Credit Commitment except as calculated based upon exceed the Total Revolving Credit Commitment as reduced by such at any time. The aggregate principal amount of all outstanding Competitive Bid Loan. Competitive Bid Outstandings, together with the sum of all other Outstandings, Loans shall not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any time.
(b) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative Agent and the Revolving Credit Lenders notice (which shall promptly notify the Lendersa “Competitive Bid Quote Request”) either an Index Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time three 12:00 Noon on (3A) LIBOR Business Days prior to the date of borrowing proposed therein or an Absolute Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time one (1) fourth Business Day prior to the date of borrowing proposed therein therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the EurodollarTerm Benchmark Competitive Rate or (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, Agent may agree). The Borrower may request offers to make Competitive Bid Loans for up to four three (43) different Interest Periods in a single notice 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 Bid Borrowing")”) and there shall not be outstanding at any one time more than four (4) Competitive Bid Borrowings. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit I G attached hereto and incorporated herein by reference and shall specify as to each Competitive Bid Borrowing:
(i) the proposed date of such Competitive Bid Borrowingborrowing, which shall be a Business Day in the case of an Absolute Rate Bid Loan Request or a LIBOR Business Day in the case of an Index Rate Bid Loan RequestDay;
(ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least $5,000,000 10,000,000 (or in integral multiples increments of $100,000 1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a2.5(a) hereof to be violated; ;
(iii) the duration of the Interest Period or applicable thereto;
(iv) whether the Competitive Bid Quote Request for a particular Interest Periods applicable thereto (which may be not less than 7 nor more than 360 days with respect to an Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the EurodollarTerm Benchmark Competitive Bid Loan and which must be one, two, three, six or twelve months with respect Rate;
(v) whether the Borrower shall have the right to an Index Rate prepay a requested Competitive Bid Loan); and
(ivvi) 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 two (2) Competitive Bid Quote Requests shall be given within five (5) Business Days (or such other number of days as the Borrower and the Administrative Agent may agree) of any other Competitive Bid Quote Request.
(i) Each Revolving Credit Lender may submit one or more Competitive 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 ’s request under Section 2.03(b2.5(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 Administrative Agent Borrower not later than 10:00 a.m. Charlotte9:30 A.M. on (A) the third Business Day prior to the proposed date of borrowing, North Carolina time on in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the EurodollarTerm Benchmark Competitive Rate or (B) the Quotation Date Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or or, in any such case, such other time and date as the Borrower and the Administrative Agent, with the consent of the Required Lenders, Agent may agree) provided that if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g), any Competitive Bid Quote may be submitted by NationsBank JPMorgan Chase Bank (or its applicable Lending Office) only if NationsBank JPMorgan Chase Bank (or such applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than 9:45 a.m. Charlotte, North Carolina time 9:15 A.M. on the Quotation Date. Subject to Articles IV, V and IX hereof, any Any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrower.
(dii) Each Competitive Bid Quote shall be substantially in the form of Exhibit J H attached hereto and incorporated herein by reference and shall specify:
(iA) the proposed date of borrowing and the Interest Periods applicable to all or each portion thereofPeriod therefor;
(iiB) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount shall be at least $1,000,000 5,000,000 (or in integral multiples increments of $100,000 1,000,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans 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;
(iiiC) in the case of a Competitive Bid Quote for Competitive Bid Loans 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 Competitive Bid LoanLoan (the “Absolute Rate”);
(D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the EurodollarTerm Benchmark Competitive Rate, the positive or negative margin to be added to or deducted from the Interbank OfferedAdjusted Term SOFR Rate; and
(ivE) the identity of the quoting LenderLendxx. Unless Xnless 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 RequestRequest 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 Administrative Agent Borrower unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(ed) The Administrative Agent Borrower shall as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 10:30 a.m. Charlotte12:00 Noon on (A) in the case of a Competitive Bid Loan at an Absolute Rate, North Carolina time on the Quotation Date)Date (or such other time and date as the Borrower and the Administrative Agent may agree) or (B) in the case of a Competitive Bid Loan at a EurodollarTerm Benchmark Competitive Rate, the third Business Day prior to the proposed date of borrowing) notify the Borrower in writing by facsimile Administrative Agent and Revolving Credit Lenders of the terms of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.03(c) hereof. The Administrative Agent's notice to the Borrower shall specify (ix) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and as well as the ranges of bids submitted for each Interest Period requested, (iiy) the respective principal amount amounts and interest rate Absolute Rates or EurodollarTerm Benchmark Competitive Rates, as the case may be, so offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). As promptly as possible, the Administrative Agent shall forward to the Borrower copies of each Competitive Bid Quote submitted to the Administrative Agent.
and (fz) Not later than 11:00 a.m. Charlotte, North Carolina time 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), the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance of the Competitive Bid Quotes so notified to it pursuant to Section 2.03(e) hereof (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 LenderQuotes. 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 a any Competitive Bid Quote for the entire principal amount of the in whole or in part (provided that any Competitive Bid Loan so offered Quote accepted in part shall be at least $5,000,000 or any portion in increments of $1,000,000 in excess thereof. The Borrower's acceptance of Competitive Bid Quotes is further subject to the following conditions); 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 in integral multiples an increment of $100,000 1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a2.5(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 interest rates Absolute Rates or EurodollarTerm Benchmark Competitive Rates, as the case may be, beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Quotes Quote where the Administrative Agent has correctly advised the Borrower that such Competitive Bid Quote fails to comply with Section 2.03(d2.5(c)(ii) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.03(a2.5(a) hereof).
(g) . Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, accept a Competitive Bid Quote that does not contain the lowest Absolute Rate or EurodollarTerm Benchmark Competitive Rates, as the case may be, where acceptance of the Competitive Bid Quote containing the lowest Absolute Rate or EurodollarTerm Benchmark 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 or more Revolving Credit Lenders with the same Absolute Rate Rates or Index RateEurodollarTerm Benchmark Competitive Rates, as applicablethe case may be, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are permitted to be accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Index EurodollarTerm Benchmark Competitive Rates, as applicablethe case may be, offered by any Revolving Credit Lender for such related Interest Period, 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 or in integral multiples increments of $100,000 in excess thereof) 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 2.03(f)(iii2.5(d)(iii) hereof shall be conclusive in the absence of manifest error.
(he) Any Revolving Credit Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:00 p.m. Charlotte, North Carolina time P.M. on the date specified for the making of such Loan, make the amount of such Loan available to the Administrative Agent at Borrower as shall be directed by the Principal Office Authorized Representative in Dollars and in immediately available funds.
(f) From time to time, for account of the Borrower. The amount so received by Borrower shall furnish such information to the Administrative Agent shall, subject as the Administrative Agent may request relating to the terms making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and conditions of this Agreement, be made available to the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an account specified by the Borrowermaturities thereof.
(ig) The parties hereto agree that each Borrower may request the Administrative Agent to receive the Competitive Bid Loan Quotes, in which event the Administrative Agent shall (as defined A) in the Prior Credit Agreement) advanced by a Lender under the Prior Credit Agreement and described on Schedule 2.03(i) hereto shall be deemed to be as case of the Closing Date a Competitive Bid Loan hereunder 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 EurodollarTerm Benchmark 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 Lender that is 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 evidenced (B) the respective principal amounts and Absolute Rates or EurodollarTerm Benchmark Competitive Rate, as the case may be, offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of borrowing, in the case of Competitive Bid Loans at the EurodollarTerm Benchmark Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as 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's . Together with each notice of a request for Competitive Bid NoteQuotes 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 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Competitive Bid Loans. (a) In addition to making Revolving Credit Loans, at any time prior Loans pursuant to the Revolving Credit Termination Date during which Commitments pursuant to Section 2.01 above, the Borrower may on the terms and conditions set forth in Section 2.03(b) below are satisfied, the Borrower may, as set forth in this Section 2.03, herein request the Lenders to make offers to make Competitive Bid Loans to the Borrower in DollarsLoans. The Lenders may, but shall have no obligation to, make such offers offers, and the Borrower may, but shall have no obligation obligations to, accept any such offers, offers in the manner set forth in this Section 2.03. The making of a Competitive Bid Loan by any Lender shall not reduce such Lender's Revolving Credit Commitment except as calculated based upon the Total Revolving Credit Commitment as reduced by such Competitive Bid Loan. Competitive Bid Outstandings, together with the sum of all other Outstandings, shall not exceed the Total Revolving Credit Commitment at any timeherein.
(b) When In order to request Competitive Bids, the Borrower wishes shall telecopy to request offers to make the Lenders a duly completed Competitive Bid Loans, it shall give Request in the Administrative Agent (which shall promptly notify the Lenders) either an Index Rate Bid Loan Request form of Exhibit E attached hereto to be received no later than 11:00 10:00 a.m. Charlotte(Nashville, North Carolina time three (3Tennessee time) LIBOR Business Days prior to on the date day of borrowing the proposed therein or an Absolute Rate Competitive Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time one (1) Business Day prior to the date of borrowing proposed therein (or such other time and date as the Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree)Loans. The Borrower may request offers to make Competitive Bid Loans for up to four (4) five different Interest Rate Periods in a single notice (notice; provided, however, that the request for each separate Interest Rate Period shall be deemed to be a "separate Competitive Bid Borrowing")Request. The Competitive Bid Request shall in each case refer to this Agreement and specify (i) the date of such Loan or Loans (which shall be a Business Day) and (ii) the aggregate principal amount thereof and whether the requested Loan is in Dollars or in a Foreign Currency (and if in a Foreign Currency, the applicable Foreign Currency) and (iii) subject to Section 2.05 herein, the Interest Rate Period requested with respect thereto.
(c) Each Lender may, in its sole discretion, make one or more Competitive Bids to the Borrower responsive to each Competitive Bid Request. Each such Competitive Bid Quote Request shall by a Lender must be received by the Borrower via telecopy, substantially in the form of Exhibit I F attached hereto and incorporated herein by reference and shall specify as to each hereto, not later than 11:00 a.m. (Nashville, Tennessee time) on the Business Day of the proposed Competitive Bid Borrowing:
Loan. Competitive Bids that do not conform substantially to the format of Exhibit E may be rejected by the Borrower, and the Borrower 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 proposed date principal amount, designating whether the bid is in Dollars or in a Foreign Currency, (ii) the Competitive Bid Rate or Rates at which the Lender is prepared to make the Competitive Bid Rate Advance or Advances, and (iii) the Interest Rate Period and the last day thereof. If any Lender shall elect not to make a Competitive Bid, such Lender shall so notify the Borrower 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 Rate Advance as part of such Competitive Bid Borrowing, which Loan. A Competitive Bid submitted by a Lender pursuant to this paragraph (c) shall be a Business Day in the case of an Absolute Rate Bid Loan Request or a LIBOR Business Day in the case of an Index Rate Bid Loan Request;
irrevocable (ii) the aggregate amount of such absent manifest error). No Competitive Bid Borrowing, which shall be at least $5,000,000 (or in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated; (iii) the duration of the Interest Period or Interest Periods applicable thereto (which submitted by a Lender may be not less than 7 nor more than 360 days with respect to an Absolute Rate Competitive Bid Loan and which must be one, two, three, six or twelve months with respect to an Index Rate Competitive Bid Loan); and
(iv) 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").
(i) Each Lender may submit one or more Competitive 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) 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 Administrative Agent not later than 10:00 a.m. Charlotte, North Carolina time 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) provided that any Competitive Bid Quote may be submitted conditioned upon acceptance by NationsBank only if NationsBank notifies the Borrower of the terms all (or some specified minimum) of the offer contained therein not later than 9:45 a.m. Charlotte, North Carolina time on the Quotation Date. Subject to Articles IV, V and IX hereof, any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrower.
(d) Each Competitive Bid Quote shall be substantially in the form of Exhibit J attached hereto and incorporated herein by reference and shall specify:
(i) the proposed date of borrowing and the Interest Periods applicable to all or each portion thereof;
(ii) the principal amount of the Competitive Bid Loan for which each such offer Competitive Bid Request is being made.
(d) The Borrower may, which principal amount shall be at least $1,000,000 in its sole and absolute discretion, subject only to the provisions of this paragraph (d), accept or in integral multiples of $100,000 in excess thereof); provided that the aggregate principal amount of all reject any Competitive Bid Loans for which a referred to in paragraph (c) above. The Borrower shall notify each Lender submits Competitive Bid Quotes may by telephone, confirmed by telecopy, whether and to what extent it has decided to accept or reject any of or all the bids referred to in paragraph (c) above not exceed later than 12:00 p.m. (Nashville, Tennessee time) on the principal amount Business Day of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested;
(iii) the rate of interest offered for each such proposed Competitive Bid Loan; and
(iv) the identity of the quoting Lender. Unless otherwise agreed by the Administrative Agent and the Borrowerprovided, no Competitive Bid Quote shall contain qualifyinghowever, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request. 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 Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(e) The Administrative Agent shall 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), notify the Borrower in writing by facsimile of the terms of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.03(c) hereof. The Administrative Agent's notice to the Borrower shall specify (i) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (ii) the respective principal amount and interest rate so offered failure by each Lender (identifying the Lender that made each Competitive Bid Quote). As promptly as possible, the Administrative Agent shall forward to the Borrower copies of each Competitive Bid Quote submitted to the Administrative Agent.
(f) Not later than 11:00 a.m. Charlotte, North Carolina time 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), the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance of the Competitive Bid Quotes so notified to it pursuant to Section 2.03(e) hereof (and the failure of the Borrower to give such notice by such time shall constitute nonacceptancebe deemed to be a rejection of all the bids referred to in paragraph (c) and the Administrative Agent shall promptly notify each affected Lender. In the case of acceptanceabove, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrower may accept a Competitive Bid Quote for the entire principal amount of the Competitive Bid Loan so offered or any portion thereof. The Borrower's acceptance of Competitive Bid Quotes is further subject to the following conditions:
(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 amount of the Competitive Bids accepted by the Borrower shall not exceed the principal amount of each specified in the Competitive Bid Borrowing Request. A notice given by the Borrower pursuant to this paragraph (d) shall be at least $5,000,000 (or in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes may be made only in ascending order of interest rates beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Quotes where the Administrative Agent has correctly advised the Borrower that such Competitive Bid Quote fails to comply with Section 2.03(d) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.03(a) hereof)irrevocable.
(g) If Competitive Bid Quotes are made by two or more Lenders with the same Absolute Rate or Index Rate, as applicable, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are permitted to be accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Index Rates, as applicable, offered by any Lender for such related Interest Period, 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 or in integral multiples of $100,000 in excess thereof) 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 as provided in Section 2.03(f)(iii) hereof shall be conclusive in the absence of manifest error.
(he) Any Lender whose offer to make any a Competitive Bid Loan has been accepted shall, not later than 1:00 2:00 p.m. Charlotte(Nashville, North Carolina time Tennessee time) on the proposed date specified for of the making of such LoanCompetitive Bid Loan borrowing, make the amount of such Competitive Bid Loan available to the Administrative Agent at the Principal Office in Dollars and Borrower in immediately available funds, for account of the Borrower. The amount so received by the Administrative Agent shall, subject to funds on the terms and conditions of this Agreement, be made available agreed to between the Borrower and the relevant Lender, provided, however, that the obligations of the Borrower with respect to all Competitive Bid Loans shall rank pari passu with the obligations of the Borrower to Lenders under any of the Loans.
(f) Each Competitive Bid Loan shall be repaid on such the earlier of (i) a date by depositing agreed upon between Borrower and Lender, and (ii) the same, in Dollars and in immediately available funds, in an account specified Maturity Date.
(g) The proceeds of each of the Competitive Bid Loans shall be used by the BorrowerBorrower for acquisitions, capital expenditures and as working capital, and for other general corporate purposes of the Borrower and other Consolidated Companies.
(h) Any Lender's Competitive Bid Rate Advance shall not reduce such Lender's obligation to lend its Pro Rata Share of the remaining unused Commitments.
(i) The parties hereto agree that each Borrower's obligations to pay the principal of, and interest on, the Competitive Bid Loan (as defined in the Prior Credit Agreement) advanced by a Loans to each Lender under the Prior Credit Agreement and described on Schedule 2.03(i) hereto shall be deemed to be as evidenced by the records of each Lender and by the Closing Date a Competitive Bid Loan hereunder and evidenced by Note payable to such Lender (or the assignor of such Lender's ). On each occasion that the Borrower shall submit a request for a Revolving Credit Loan or a request for a Letter of Credit, the Borrower shall certify to Agent the total outstanding principal amount of all Competitive Bid NoteLoans and the respective Lenders holding such Competitive Bid Loans (designating the amount held by each such Lender).
Appears in 1 contract
Competitive Bid Loans. (a) In addition to Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date during which the conditions set forth in Section 2.03(b) below are satisfiedand provided no Default or Event of Default exists hereunder, the Borrower may, as set forth in this Section 2.032.5, request the Revolving Credit Lenders to make offers to make Competitive Bid Loans to the Borrower in Dollars. The Revolving Credit Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers, offers in the manner set forth in this Section 2.032.5. The making of a There may be no more than ten (10) Interest Periods, and no more than one (1) one-week Interest Periods, for all Revolving Credit Loans and Competitive Bid Loans outstanding at the same time (for which purpose Interest Periods for each Eurodollar Revolving Credit Loan and each Competitive Bid Loan by any Lender shall be deemed to be different Interest Periods even if they are coterminous). The aggregate principal amount of all Outstanding Revolving Credit Obligations shall not reduce such Lender's Revolving Credit Commitment except as calculated based upon exceed the Total Revolving Credit Commitment as reduced by such at any time. The aggregate principal amount of all outstanding Competitive Bid Loan. Competitive Bid Outstandings, together with the sum of all other Outstandings, Loans shall not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any time.
(b) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative Agent and the Revolving Credit Lenders notice (which shall promptly notify the Lendersa “Competitive Bid Quote Request”) either an Index Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time three 12:00 Noon on (3A) LIBOR Business Days prior to the date of borrowing proposed therein or an Absolute Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time one (1) fourth Business Day prior to the date of borrowing proposed therein therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Eurodollar Competitive Rate or (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, Agent may agree). The Borrower may request offers to make Competitive Bid Loans for up to four three (43) different Interest Periods in a single notice 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 Bid Borrowing")”) and there shall not be outstanding at any one time more than four (4) Competitive Bid Borrowings. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit I G attached hereto and incorporated herein by reference and shall specify as to each Competitive Bid Borrowing:
(i) the proposed date of such Competitive Bid Borrowingborrowing, which shall be a Business Day in the case of an Absolute Rate Bid Loan Request or a LIBOR Business Day in the case of an Index Rate Bid Loan RequestDay;
(ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least $5,000,000 10,000,000 (or in integral multiples increments of $100,000 1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a2.5(a) hereof to be violated; ;
(iii) the duration of the Interest Period or applicable thereto;
(iv) whether the Competitive Bid Quote Request for a particular Interest Periods applicable thereto (which may be not less than 7 nor more than 360 days with respect to an Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Eurodollar Competitive Bid Loan and which must be one, two, three, six or twelve months with respect Rate;
(v) whether the Borrower shall have the right to an Index Rate prepay a requested Competitive Bid Loan); and
(ivvi) 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 two (i2) Each Lender may submit one or more Competitive 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(bRequests shall be given within five (5) 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 Administrative Agent not later than 10:00 a.m. Charlotte, North Carolina time on the Quotation Date Business Days (or such other time and date number of days as the Borrower and the Administrative Agent, with the consent of the Required Lenders, Agent may agree) provided that of any Competitive Bid Quote may be submitted by NationsBank only if NationsBank notifies the Borrower of the terms of the offer contained therein not later than 9:45 a.m. Charlotte, North Carolina time on the Quotation Date. Subject to Articles IV, V and IX hereof, any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrower.
(d) Each Competitive Bid Quote shall be substantially in the form of Exhibit J attached hereto and incorporated herein by reference and shall specify:
(i) the proposed date of borrowing and the Interest Periods applicable to all or each portion thereof;
(ii) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount shall be at least $1,000,000 (or in integral multiples of $100,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans 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;
(iii) the rate of interest offered for each such Competitive Bid Loan; and
(iv) 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. 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 Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(e) The Administrative Agent shall 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), notify the Borrower in writing by facsimile of the terms of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.03(c) hereof. The Administrative Agent's notice to the Borrower shall specify (i) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (ii) the respective principal amount and interest rate so offered by each Lender (identifying the Lender that made each Competitive Bid Quote). As promptly as possible, the Administrative Agent shall forward to the Borrower copies of each Competitive Bid Quote submitted to the Administrative Agent.
(f) Not later than 11:00 a.m. Charlotte, North Carolina time 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), the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance of the Competitive Bid Quotes so notified to it pursuant to Section 2.03(e) hereof (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. 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 a Competitive Bid Quote for the entire principal amount of the Competitive Bid Loan so offered or any portion thereof. The Borrower's acceptance of Competitive Bid Quotes is further subject to the following conditions:
(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 in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes may be made only in ascending order of interest rates beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Quotes where the Administrative Agent has correctly advised the Borrower that such Competitive Bid Quote fails to comply with Section 2.03(d) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.03(a) hereof).
(g) If Competitive Bid Quotes are made by two or more Lenders with the same Absolute Rate or Index Rate, as applicable, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are permitted to be accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Index Rates, as applicable, offered by any Lender for such related Interest Period, 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 or in integral multiples of $100,000 in excess thereof) 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 as provided in Section 2.03(f)(iii) hereof shall be conclusive in the absence of manifest error.
(h) Any Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:00 p.m. Charlotte, North Carolina time on the date specified for the making of such Loan, make the amount of such Loan available to the Administrative Agent at the Principal Office in Dollars and in immediately available funds, for account of the Borrower. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an account specified by the Borrower.
(i) The parties hereto agree that each Competitive Bid Loan (as defined in the Prior Credit Agreement) advanced by a Lender under the Prior Credit Agreement and described on Schedule 2.03(i) hereto shall be deemed to be as of the Closing Date a Competitive Bid Loan hereunder and evidenced by such Lender's Competitive Bid Note.
Appears in 1 contract
Competitive Bid Loans. (a) In addition to Revolving Credit borrowings of Syndicated Loans, at any time prior to the Revolving Credit Termination Date during which the conditions set forth in Section 2.03(b) below are satisfied, the Borrower Multicurrency Facilities Borrowers may, as set forth in this Section 2.032.04, request the Multicurrency Facilities Lenders to make offers to make Competitive Bid Loans to the Borrower Multicurrency Facilities Borrowers in Dollars. The Multicurrency Facilities Lenders may, but shall have no obligation to, make such offers and the Borrower Multicurrency Facilities Borrowers may, but shall have no obligation to, accept any such offers, offers in the manner set forth in this Section 2.03. The making of a Competitive Bid Loan by any Lender shall not reduce such Lender's Revolving Credit Commitment except as calculated based upon the Total Revolving Credit Commitment as reduced by such Competitive Bid Loan2.04. Competitive Bid OutstandingsLoans shall be Absolute Rate Loans, together with provided that:
(i) the sum of all other Outstandings, Total Domestic Utilization shall not exceed the Total Domestic Revolving Credit Commitment Commitment;
(ii) there may be no more than four (4) different Interest Periods for Competitive Bid Loans outstanding at the same time;
(iii) the aggregate amount of outstanding Competitive Bid Loans of a Multicurrency Facilities Lender shall not exceed at any timetime an amount equal to $25,000,000;
(iv) no Competitive Bid Loan shall have a maturity date subsequent to the Revolving Credit Termination Date; and
(v) the aggregate amount of Competitive Bid Loans outstanding at any time shall not exceed $25,000,000 in the aggregate.
(b) When the a Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative Agent (which shall promptly notify the Multicurrency Facilities Lenders) either an Index Rate notice (a "Competitive Bid Loan Request Quote Request") to be received no later than 11:00 a.m. Charlotte, North Carolina time three (3) LIBOR 10:00 A.M. on the Business Days prior to Day next preceding the date of borrowing proposed therein or an Absolute Rate Bid Loan Request to be received no later than 11:00 a.m. Charlottetherein, North Carolina time one (1) Business Day prior to the date of borrowing proposed therein (or such other time and date as the such Multicurrency Facilities Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree). The Borrower Multicurrency Facilities Borrowers may request offers to make Competitive Bid Loans for up to four three (43) different Interest Periods in a single notice 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 Bid Borrowing")) and there shall not be outstanding at any one time more than four (4) Competitive Bid Borrowings. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit I attached H hereto and incorporated herein by reference and shall specify as to each Competitive Bid Borrowing:
(i) the proposed date of such Competitive Bid Borrowingborrowing, which shall be a Business Day in the case of an Absolute Rate Bid Loan Request or a LIBOR Business Day in the case of an Index Rate Bid Loan RequestDay;
(ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least $5,000,000 (or in integral multiples a larger multiple of $100,000 in excess thereof1,000,000) but shall not cause the limits specified in Section 2.03(a2.04(a) hereof to be violated; ;
(iii) the duration of the Interest Period or Interest Periods applicable thereto (which may be not less than 7 nor more than 360 days with respect to an Absolute Rate Competitive Bid Loan and which must be one, two, three, six or twelve months with respect to an Index Rate Competitive Bid Loan)thereto; and
(iv) 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 2.04(b), no Competitive Bid Quote Request shall be given within five (5) Business Days (or such other number of days as the applicable Multicurrency Facilities Borrower and the Agent, with the consent of the Required Lenders, may agree) of any other Competitive Bid Quote Request.
(i) Each Multicurrency Facilities Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if the a Multicurrency Facilities Borrower's request under Section 2.03(b2.04(b) hereof specified more than one Interest Period, such Multicurrency Facilities 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 Administrative Agent not later than 10:00 a.m. A.M. Charlotte, North Carolina time on the Quotation Date (or such case, such other time and date as the applicable Multicurrency Facilities Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree) provided ); provided, that any Competitive Bid Quote may be submitted by NationsBank the Agent (or its Applicable Lending Office) only if NationsBank the Agent (or such Applicable Lending Office) notifies the Multicurrency Facilities Borrower of the terms of the offer contained therein not later than 9:45 a.m. A.M. Charlotte, North Carolina time on the Quotation Date. Subject to Articles Article IV, V Article VII and IX X hereof, any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the applicable Multicurrency Facilities Borrower.
(dii) Each Competitive Bid Quote shall be substantially in the form of Exhibit J attached I hereto and incorporated herein by reference and shall specify:
(iA) the proposed date of borrowing and the Interest Periods applicable to all or each portion thereofPeriod therefor;
(iiB) the principal amount of the Competitive Bid Loan for which each such offer order is being made, which principal amount shall be at least $1,000,000 5,000,000 (or in integral multiples a larger multiple of $100,000 in excess thereof1,000,000); provided that the aggregate principal amount of all Competitive Bid Loans for which a Lender submits Competitive Bid Quotes (x) may not exceed $25,000,000 and (y) may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested;
(iiiC) the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Competitive Bid LoanLoan (the "Absolute Rate"); and
(ivD) the identity of the quoting Lender. Unless otherwise agreed by the Administrative Agent and the applicable Multicurrency Facilities 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. Any subsequent Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the applicable Multicurrency Facilities 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) The Agent shall, 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), notify the applicable Multicurrency Facilities Borrower of the terms (i) of any Competitive Bid Quote submitted by a Multicurrency Facilities Lender that is in accordance with Section 2.04(c) hereof and (ii) of any Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Multicurrency Facilities Lender with respect to the same Competitive Bid Quote Request Request. Any such subsequent Competitive Bid Quote shall be disregarded by the Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(e) The Administrative Agent shall 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), notify the Borrower in writing by facsimile of the terms of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.03(c) hereof. The Administrative Agent's notice to the applicable Multicurrency Facilities Borrower shall specify (iA) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes orders have been received and (iiB) the respective principal amount amounts and interest rate Absolute Rates so offered by each Multicurrency Facilities Lender (identifying the Multicurrency Facilities Lender that made each Competitive Bid Quote). As promptly as possible, the Administrative Agent shall forward to the Borrower copies of each Competitive Bid Quote submitted to the Administrative Agent.
(fe) Not later than 11:00 a.m. A.M. Charlotte, North Carolina time on the Quotation Date (or such other time and date as the applicable Multicurrency Facilities Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree), the applicable Multicurrency Facilities Borrower shall notify the Administrative Agent of its acceptance or nonacceptance of the Competitive Bid Quotes offers so notified to it pursuant to Section 2.03(e2.04(d) hereof (and the failure of the applicable Multicurrency Facilities Borrower to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Multicurrency Facilities Lender. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The applicable Borrower may accept a any Competitive Bid Quote for the entire principal amount of the in whole or in part (provided that any Competitive Bid Loan so offered Quote accepted in part shall be at least $5,000,000 or any portion thereof. The Borrower's acceptance a larger multiple of Competitive Bid Quotes is further subject to the following conditions$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 in integral multiples a larger multiple of $100,000 in excess thereof1,000,000) but shall not cause the limits specified in Section 2.03(a2.04(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes offers may be made only in ascending order of interest rates Absolute Rates, beginning with the lowest rate so offered; and
(iv) the Borrower Multicurrency Facilities Borrowers may not accept any Competitive Bid Quotes offer where the Administrative Agent has correctly advised the Borrower Multicurrency Facilities Borrowers that such Competitive Bid Quote offer fails to comply with Section 2.03(d2.04(c)(ii) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.03(a2.04(a) hereof).
(g) . If Competitive Bid Quotes offers are made by two or more Lenders with the same Absolute Rate or Index Rate, as applicableRates, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes offers are permitted to be accepted for the related Interest Period after the acceptance of all Competitive Bid Quotesoffers, if any, of all lower Absolute Rates or Index Rates, as applicable, offered by any Multicurrency Facilities Lender for such related Interest Period, the principal amount of Competitive Bid Loans in respect of which such Competitive Bid Quotes offers are accepted shall be allocated by the applicable Multicurrency Facilities Borrower among such Multicurrency Facilities Lenders as nearly as possible (in amounts of at least $1,000,000 5,000,000 or in integral larger multiples of $100,000 in excess thereof1,000,000) in proportion to the aggregate principal amount of such Competitive Bid Quotesoffers. Determinations by the applicable Multicurrency Facilities Borrower of the amounts of Competitive Bid Loans and the lowest bid after adjustment as provided in Section 2.03(f)(iii2.04(e)(iii) hereof shall be conclusive in the absence of manifest error.
(hf) Any Multicurrency Facilities Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:00 p.m. P.M. Charlotte, North Carolina time on the date specified for the making of such Loan, make the amount of such Loan available to the Administrative Agent at the Principal Office in Dollars and in immediately available funds, for account of the applicable Multicurrency Facilities Borrower. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the applicable Multicurrency Facilities Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an account specified of the Multicurrency Facilities Borrowers maintained at the Principal Office or otherwise as shall be directed by the applicable Multicurrency Facilities Borrower.
(i) The parties hereto agree that each Competitive Bid Loan (as defined in the Prior Credit Agreement) advanced by a Lender under the Prior Credit Agreement and described on Schedule 2.03(i) hereto shall be deemed to be as of the Closing Date a Competitive Bid Loan hereunder and evidenced by such Lender's Competitive Bid Note.
Appears in 1 contract
Samples: Revolving Credit and Reimbursement Agreement (Tech Data Corp)
Competitive Bid Loans. (a) In addition US Borrower may request that each Lender submit Competitive Bids (on a several basis) for requested maturities of thirty days or more to Revolving Credit LoansUS Borrower on any Business Day during the US Facility Commitment Period, at any time prior to the Revolving Credit Termination Date during which the conditions set forth in Section 2.03(b) below provided that all Lenders are satisfied, the Borrower may, as set forth in this Section 2.03, request the Lenders requested to make offers to make Competitive Bid Loans to the Borrower in Dollars. The Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers, in the manner set forth in this Section 2.03. The making of a Competitive Bid Loan on the same basis at the same time. In order to request Competitive Bids, US Borrower shall deliver by any Lender shall hand or facsimile to US Agent a Competitive Bid Request, to be received by US Agent not reduce such Lender's Revolving Credit Commitment except as calculated based upon later than 9:00 a.m., Dallas, Texas time one Business Day before the Total Revolving Credit Commitment as reduced by such date specified for a proposed Competitive Bid Loan. A Competitive Bid OutstandingsRequest that does not conform substantially to the format of Exhibit H may be rejected in US Agent's sole discretion, together with the sum of all other Outstandings, shall not exceed the Total Revolving Credit Commitment at any time.
(b) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative and US Agent (which shall promptly notify the Lenders) either US Borrower of such rejection by facsimile. After receiving an Index Rate acceptable Competitive Bid Loan Request to be received Request, US Agent shall no later than 11:00 a.m. Charlotte12:00 noon, North Carolina Dallas, Texas time three (3) LIBOR Business Days prior to on the date of borrowing proposed therein or an Absolute Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time one (1) Business Day prior to the date of borrowing proposed therein (or such other time and date as the Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree). The Borrower may request offers to make Competitive Bid Loans for up to four (4) different Interest Periods in a single notice (a "Competitive Bid Borrowing"). Each such Competitive Bid Quote Request shall be is received by US Agent, by facsimile deliver to Lenders an Invitation to Bid substantially in the form of Exhibit I attached hereto and incorporated herein by reference and shall specify as with respect thereto.
(b) Each Lender may, in its sole discretion, make one or more Competitive Bids to US Agent responsive to each Competitive Bid BorrowingRequest given by US Borrower. Each Competitive Bid by a Lender must be received by US Agent by facsimile not later than 9:00 a.m., Dallas, Texas time on the date specified for a proposed Competitive Bid Loan. Multiple bids may be accepted by US Agent. Competitive Bids that do not conform substantially to the format of Exhibit J may be rejected by US Agent after conferring with, and upon the instruction of, US Borrower, and US Agent shall notify the bidding Lender of such rejection as soon as practicable. If any Lender shall elect not to make a Competitive Bid, such Lender shall so notify US Agent by facsimile not later than 9:00 a.m., Dallas, Texas time, on the date specified for a Competitive Bid Loan; 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 and by such failure such Lender shall be deemed to have rejected such Competitive Bid. A Competitive Bid submitted by a Lender shall be irrevocable.
(c) Promptly, and in no event later than 9:30 a.m., Dallas, Texas time, on the date specified for a proposed Competitive Bid Loan, US Agent shall notify US Borrower by facsimile of all the Competitive Bids made, the Competitive Bid Rate and the principal amount of each Competitive Bid Loan in respect of which a Competitive Bid was made, and the identity of each Lender that made each Competitive Bid. US Agent shall send a copy of all Competitive Bids to US Borrower for its records as soon as practicable after completion of the bidding process.
(d) US Borrower may, subject only to the provisions hereof, accept or reject any Competitive Bid. US Borrower shall notify US Agent by facsimile pursuant to a Competitive Bid Accept/Reject Letter whether and to what extent US Borrower has decided to accept or reject any or all of the Competitive Bids, not later than 10:00 a.m., Dallas, Texas time, on the date specified for a proposed Competitive Bid Loan; provided, however, that:
(i) the proposed date failure by US Borrower to accept or reject any Competitive Bid within the time period specified herein shall be deemed to be a rejection of such Competitive Bid Borrowing, which shall be a Business Day in the case of an Absolute Rate Bid Loan Request or a LIBOR Business Day in the case of an Index Rate Bid Loan Request;Bid,
(ii) the aggregate amount of such the Competitive Bids accepted by US Borrower shall not exceed the principal amount specified in the Competitive Bid Borrowing, which shall be at least $5,000,000 (or in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated; Request,
(iii) the duration aggregate amount of all outstanding US Loans and US LC Obligations shall never exceed the Interest Period or Interest Periods applicable thereto (which may be not less than 7 nor more than 360 days with respect to an Absolute Rate Competitive Bid Loan and which must be one, two, three, six or twelve months with respect to an Index Rate Competitive Bid Loan); andUS Maximum Credit Amount,
(iv) if US Borrower shall accept a Competitive Bid or Competitive Bids made at a particular Competitive Bid Rate, but the date on which amount of such Competitive Bid or Competitive Bids shall cause the total amount of Competitive Bids to be accepted by US Borrower to exceed the amount specified in the Competitive Bid Quotes are to be submitted if it is before the proposed date Request, then US Borrower shall accept a portion of borrowing (the date on which such Competitive Bid Quotes are or Competitive 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 Competitive Bids at such Competitive Bid Rate, shall be submitted is called made pro rata in accordance with the "Quotation Date").amount of each such Competitive Bid at such Competitive Bid Rate, and
(iv) Each Lender may submit one or more no Competitive Bid Quotes, each containing an offer to make shall be accepted for a Competitive Bid Loan in response to any unless such Competitive Bid Quote RequestLoan is in a minimum principal amount of US $5,000,000 or a higher integral multiple of US $1,000,000; provided thatprovided, however, that if a Competitive Bid Loan must be in an amount less than US $5,000,000 because of the Borrower's request under Section 2.03(bprovisions of clause (iv) hereof specified more than one Interest Periodabove, such Lender may make a single submission containing one or more Competitive Bid Quotes Loan may be for each such Interest Period. Each a minimum of US $1,000,000 or any higher integral multiple thereof, and in calculating the pro rata allocation of acceptances or portions of multiple bids at a particular Competitive Bid Quote must be submitted Rate pursuant to clause (iv), the Administrative Agent not later than 10:00 a.m. Charlotte, North Carolina time 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) provided that any Competitive Bid Quote may be submitted by NationsBank only if NationsBank notifies the Borrower of the terms of the offer contained therein not later than 9:45 a.m. Charlotte, North Carolina time on the Quotation Date. Subject to Articles IV, V and IX hereof, any Competitive Bid Quote so made amounts shall be irrevocable except with rounded to integral multiples of US $1,000,000 in a manner which shall be in the consent sole and absolute discretion of the Administrative Agent given on the instructions of the US Borrower.
(de) Each Promptly on each date US Borrower accepts a Competitive Bid, US Agent shall notify each Lender whether or not its Competitive Bid Quote shall be substantially has been accepted (and if so, in what amount and at what Competitive Bid Rate) by facsimile transmission sent by US Agent, and each successful bidder will thereupon become bound, subject to the form of Exhibit J attached hereto and incorporated herein by reference and shall specify:
(i) the proposed date of borrowing and the Interest Periods other applicable conditions hereof, to all or each portion thereof;
(ii) the principal amount of make the Competitive Bid Loan for in respect of which its Competitive Bid has been accepted. After completing the notifications referred to in the immediately preceding sentence, US Agent shall notify each such offer is being made, which principal amount shall be at least $1,000,000 (or in integral multiples Lender of $100,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans for Bids accepted. Each Lender which is to make a Lender submits Competitive Bid Quotes may not exceed Loan shall, before 11:00 a.m., Dallas, Texas time, on the principal amount of borrowing date specified in the Competitive Bid Borrowing for a particular Interest Period for which offers were requested;
(iii) Request applicable thereto, make available to US Agent in immediately available funds the rate of interest offered for each such Competitive Bid Loan; and
(iv) 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. 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 Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(e) The Administrative Agent shall 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), notify the Borrower in writing by facsimile of the terms of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.03(c) hereof. The Administrative Agent's notice to the Borrower shall specify (i) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (ii) the respective principal amount and interest rate so offered by each Lender (identifying the Lender that made each Competitive Bid Quote). As promptly as possible, the Administrative Agent shall forward to the Borrower copies of each Competitive Bid Quote submitted Loan to be made by such Lender, and US Agent shall promptly deposit such funds to an account designated by US Borrower. As soon as practicable thereafter, US Agent shall notify each Lender of the Administrative Agentaggregate amount of Competitive Bid Loans advanced, the respective Competitive Bid Interest Periods thereof and Competitive Bid Rate applicable thereto.
(f) Not later than 11:00 a.m. CharlotteThe obligation of US Borrower to repay to each Lender the aggregate amount of all Competitive Bid Loans made by such Lender, North Carolina together with interest accruing in connection therewith, shall be evidenced by promissory notes (respectively, such Lender's "Competitive Bid Note") made by US Borrower payable to the order of such Lender in the form of Exhibit L, with appropriate insertions. The amount of principal owing on any Lender's Competitive Bid Note at any given time shall be the aggregate amount of all Competitive Bid Loans theretofore made by such Lender thereunder minus all payments of principal theretofore received by such Lender thereon. Interest on each Competitive Bid Note shall accrue and be due and payable as provided herein and therein. US Borrower shall repay 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), the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance final day of the Competitive Bid Quotes so notified to it pursuant to Section 2.03(e) hereof (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. 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 a Competitive Bid Quote for the entire principal amount of the Competitive Bid Loan so offered or any portion thereof. The Borrower's acceptance of Competitive Bid Quotes is further subject to the following conditions:
(i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth Loan (such date being that specified by US Borrower for repayment of such Competitive Bid Loan in the related Competitive Bid Quote Request;
(iiRequest and such date being no later than six months after the date of the Competitive Bid Loan) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes may be made only in ascending order of interest rates beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Quotes where the Administrative Agent has correctly advised the Borrower that such Competitive Bid Quote fails to comply with Section 2.03(d) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.03(a) hereof).
(g) If Competitive Bid Quotes are made by two or more Lenders with the same Absolute Rate or Index Rate, as applicable, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are permitted to be accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Index Rates, as applicable, offered by any Lender for such related Interest Period, 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 or in integral multiples of $100,000 in excess thereof) in proportion to the aggregate then unpaid principal amount of such Competitive Bid QuotesLoan. Determinations by Subject to Section 1.6 and the payment of amounts described in Section 3.6, US Borrower shall have the right to prepay any principal amount of the amounts of any Competitive Bid Loans and the lowest bid as provided in Section 2.03(f)(iii) hereof shall be conclusive in the absence of manifest errorLoan.
(hg) Any Lender whose offer to make any No Competitive Bid Loan has been accepted shall, not later than 1:00 p.m. Charlotte, North Carolina time on shall be made within five Business Days after the date specified for the making of such any other Competitive Bid Loan, make the amount of such Loan available unless US Borrower and US Agent shall mutually agree otherwise. If US Agent shall at any time elect to the Administrative Agent at the Principal Office in Dollars and in immediately available funds, for account of the Borrower. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an account specified by the Borrower.
(i) The parties hereto agree that each Competitive Bid Loan (as defined in the Prior Credit Agreement) advanced by a Lender under the Prior Credit Agreement and described on Schedule 2.03(i) hereto shall be deemed to be as of the Closing Date submit a Competitive Bid Loan hereunder and evidenced by in its capacity as a Lender, it shall submit such Lender's bid directly to US Borrower requesting such Competitive Bid Noteone quarter of an hour earlier than the latest time at which the other Lenders are required to submit their bids to US Agent.
Appears in 1 contract
Samples: Credit Agreement (Devon Energy Corp)
Competitive Bid Loans. (a) In addition to making Revolving Credit Loans, at any time prior Loans pursuant to the Revolving Credit Termination Date during which the conditions set forth in Commitments pursuant to Section 2.03(b) below are satisfied2.1. above, the Borrower Lenders may, as set forth in this Section 2.03their sole discretion and at the request of the Borrower, request the Lenders to make offers to make Competitive Bid Loans Rate Advances to the Borrower in Dollars. The Lenders may, but shall have no obligation to, make such offers and an amount not to exceed the Borrower may, but shall have no obligation to, accept any such offers, in the manner set forth in this Section 2.03. The making of a Competitive Bid Loan by any Lender shall not reduce such Lender's Available Revolving Credit Commitment except as calculated based upon the Total Revolving Credit Commitment as reduced by such Competitive Bid Loan. Competitive Bid Outstandings, together with the sum of all other Outstandings, shall not exceed the Total Revolving Credit Commitment at any timeCommitment.
(b) When In order to request Competitive Bids, the Borrower wishes shall telecopy to request offers the
(c) Each Lender may, in its sole discretion, make one or more Competitive Bids (but not more than two) to make the Borrower responsive to a Competitive Bid Loans, it shall give the Administrative Agent (which shall promptly notify the Lenders) either an Index Rate Request. Each Competitive Bid Loan Request to by a Lender must be received no later than 11:00 a.m. Charlotteby the Agent via telecopy, North Carolina time three (3) LIBOR Business Days prior to the date of borrowing proposed therein or an Absolute Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time one (1) Business Day prior to the date of borrowing proposed therein (or such other time and date as the Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree). The Borrower may request offers to make Competitive Bid Loans for up to four (4) different Interest Periods in a single notice (a "Competitive Bid Borrowing"). Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit I G attached hereto and incorporated herein by reference and shall specify as to each hereto, not later than 11:00 a.m. (Atlanta, Georgia time) on the Business Day of the proposed Competitive Bid Borrowing:
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 proposed date 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 Borrower, (ii) the Competitive Bid Rate or Rates at which the Lender is prepared to make the Competitive Bid Rate Advance or Advances, and (iii) the Interest Period and the last day thereof. 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 Rate Advance as part of such Competitive Bid Borrowing, which shall be a Business Day in the case of an Absolute Rate Bid Loan Request or a LIBOR Business Day in the case of an Index Rate Bid Loan Request;
(ii) the aggregate amount of such Loan. A Competitive Bid Borrowing, which shall be at least $5,000,000 (or in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated; (iii) the duration of the Interest Period or Interest Periods applicable thereto (which may be not less than 7 nor more than 360 days with respect to an Absolute Rate Competitive Bid Loan and which must be one, two, three, six or twelve months with respect to an Index Rate Competitive Bid Loan); and
(iv) 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").
(i) Each Lender may submit one or more Competitive 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) 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 Administrative Agent not later than 10:00 a.m. Charlotte, North Carolina time 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) provided that any Competitive Bid Quote may be submitted by NationsBank only if NationsBank notifies the Borrower of the terms of the offer contained therein not later than 9:45 a.m. Charlotte, North Carolina time on the Quotation Date. Subject a Lender pursuant to Articles IV, V and IX hereof, any Competitive Bid Quote so made this paragraph (c) shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrower(absent manifest error).
(d) Each The Agent shall promptly notify the Borrower by telecopy of all the Competitive Bids made, the Competitive Bid Quote shall be substantially in the form of Exhibit J attached hereto Rate and incorporated herein by reference and shall specify:
(i) the proposed date of borrowing and the Interest Periods applicable to all or each portion thereof;
(ii) the principal amount of the each Competitive Bid Loan for Rate Advance in respect of which each such offer is being made, which principal amount shall be at least $1,000,000 (or in integral multiples of $100,000 in excess thereof); provided that the aggregate principal amount of all a Competitive Bid Loans 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;
(iii) the rate of interest offered for each such Competitive Bid Loan; and
(iv) was made and the identity of the quoting LenderLender that made each bid. Unless otherwise agreed by The Agent shall send a copy of all Competitive Bids to the Administrative Agent and Borrower for its records as soon as practicable after completion of the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those bidding process set forth in the applicable Competitive Bid Quote Request. 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 Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quotethis Section 2.6.
(e) The Administrative Agent shall as promptly as practicable after Borrower may, in its sole and absolute discretion, subject only to the provisions of this paragraph (e), accept or reject any Competitive Bid Quote is submitted referred to in paragraph (but d) above. The Borrower shall notify the Agent by telephone, confirmed by telecopy in the form of a Competitive Bid Accept/Reject Letter, whether and to what extent it has decided to accept or reject any event of or all the bids referred to in paragraph (d) above not later than 10:30 a.m. Charlotte12:30 p.m. (Atlanta, North Carolina time Georgia time) on the Quotation Date), notify the Borrower in writing by facsimile Business Day of the terms of any proposed Competitive Bid Quote submitted by a Lender Loan; provided, however, that is in accordance with Section 2.03(c) hereof. The Administrative Agent's notice to the Borrower shall specify (i) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (ii) the respective principal amount and interest rate so offered failure by each Lender (identifying the Lender that made each Competitive Bid Quote). As promptly as possible, the Administrative Agent shall forward to the Borrower copies of each Competitive Bid Quote submitted to the Administrative Agent.
(f) Not later than 11:00 a.m. Charlotte, North Carolina time 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), the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance of the Competitive Bid Quotes so notified to it pursuant to Section 2.03(e) hereof (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. 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 a Competitive Bid Quote for the entire principal amount of the Competitive Bid Loan so offered or any portion thereof. The Borrower's acceptance of Competitive Bid Quotes is further subject to the following conditions:
(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 in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes may be made only in ascending order of interest rates beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Quotes where the Administrative Agent has correctly advised the Borrower that such Competitive Bid Quote fails to comply with Section 2.03(d) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.03(a) hereof).
(g) If Competitive Bid Quotes are made by two or more Lenders with the same Absolute Rate or Index Rate, as applicable, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are permitted to be accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Index Rates, as applicable, offered by any Lender for such related Interest Period, 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 or in integral multiples of $100,000 in excess thereof) 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 as provided in Section 2.03(f)(iii) hereof shall be conclusive in the absence of manifest error.
(h) Any Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:00 p.m. Charlotte, North Carolina time on the date specified for the making of such Loan, make the amount of such Loan available to the Administrative Agent at the Principal Office in Dollars and in immediately available funds, for account of the Borrower. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an account specified by the Borrower.
(i) The parties hereto agree that each Competitive Bid Loan (as defined in the Prior Credit Agreement) advanced by a Lender under the Prior Credit Agreement and described on Schedule 2.03(i) hereto shall be deemed to be as a rejection of all the bids referred to in paragraph (d) above, (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 Closing Date a Competitive Bids accepted by the Borrower shall not exceed the principal amount specified in the Competitive Bid Loan hereunder and evidenced by such Lender's Competitive Bid Note.Request,
Appears in 1 contract
Samples: Credit Agreement (Rock Tenn Co)
Competitive Bid Loans. (a) In addition to Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date during which the conditions set forth in Section 2.03(b) below are satisfiedand provided no Default or Event of Default exists hereunder, the Borrower may, as set forth in this Section 2.032.5, request the Revolving Credit Lenders to make offers to make Competitive Bid Loans to the Borrower in Dollars. The Revolving Credit Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers, offers in the manner set forth in this Section 2.032.5. The making of a There may be no more than ten (10) Interest Periods, and no more than one (1) one-week Interest Periods, for all Revolving Credit Loans and Competitive Bid Loans outstanding at the same time (for which purpose Interest Periods for each Term Benchmark Revolving Credit Loan and each Competitive Bid Loan by any Lender shall be deemed to be different Interest Periods even if they are coterminous). The aggregate principal amount of all Outstanding Revolving Credit Obligations shall not reduce such Lender's Revolving Credit Commitment except as calculated based upon exceed the Total Revolving Credit Commitment as reduced by such at any time. The aggregate principal amount of all outstanding Competitive Bid Loan. Competitive Bid Outstandings, together with the sum of all other Outstandings, Loans shall not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any time.
(b) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative Agent and the Revolving Credit Lenders notice (which shall promptly notify the Lendersa “Competitive Bid Quote Request”) either an Index Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time three 12:00 Noon on (3A) LIBOR Business Days prior to the date of borrowing proposed therein or an Absolute Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time one (1) fourth Business Day prior to the date of borrowing proposed therein therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate or (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, Agent may agree). The Borrower may request offers to make Competitive Bid Loans for up to four three (43) different Interest Periods in a single notice 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 Bid Borrowing")”) and there shall not be outstanding at any one time more than four (4) Competitive Bid Borrowings. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit I G attached hereto and incorporated herein by reference and shall specify as to each Competitive Bid Borrowing:
(i) the proposed date of such Competitive Bid Borrowingborrowing, which shall be a Business Day in the case of an Absolute Rate Bid Loan Request or a LIBOR Business Day in the case of an Index Rate Bid Loan RequestDay;
(ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least $5,000,000 10,000,000 (or in integral multiples increments of $100,000 1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a2.5(a) hereof to be violated; ;
(iii) the duration of the Interest Period or applicable thereto;
(iv) whether the Competitive Bid Quote Request for a particular Interest Periods applicable thereto (which may be not less than 7 nor more than 360 days with respect to an Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Term Benchmark Competitive Bid Loan and which must be one, two, three, six or twelve months with respect Rate;
(v) whether the Borrower shall have the right to an Index Rate prepay a requested Competitive Bid Loan); and
(ivvi) 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 two (2) Competitive Bid Quote Requests shall be given within five (5) Business Days (or such other number of days as the Borrower and the Administrative Agent may agree) of any other Competitive Bid Quote Request.
(i) Each Revolving Credit Lender may submit one or more Competitive 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 ’s request under Section 2.03(b2.5(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 Administrative Agent Borrower not later than 10:00 a.m. Charlotte9:30 A.M. on (A) the third Business Day prior to the proposed date of borrowing, North Carolina time on in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or or, in any such case, such other time and date as the Borrower and the Administrative Agent, with the consent of the Required Lenders, Agent may agree) provided that if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g), any Competitive Bid Quote may be submitted by NationsBank JPMorgan Chase Bank (or its applicable Lending Office) only if NationsBank JPMorgan Chase Bank (or such applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than 9:45 a.m. Charlotte, North Carolina time 9:15 A.M. on the Quotation Date. Subject to Articles IV, V and IX hereof, any Any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrower.
(dii) Each Competitive Bid Quote shall be substantially in the form of Exhibit J H attached hereto and incorporated herein by reference and shall specify:
(iA) the proposed date of borrowing and the Interest Periods applicable to all or each portion thereofPeriod therefor;
(iiB) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount shall be at least $1,000,000 5,000,000 (or in integral multiples increments of $100,000 1,000,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans 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;
(iiiC) in the case of a Competitive Bid Quote for Competitive Bid Loans 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 Competitive Bid LoanLoan (the “Absolute Rate”);
(D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Term Benchmark Competitive Rate, the positive or negative margin to be added to or deducted from the Adjusted Term SOFR Rate; and
(ivE) the identity of the quoting LenderXxxxxx. 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 RequestRequest 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 Administrative Agent Borrower unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(ed) The Administrative Agent Borrower shall as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 10:30 a.m. Charlotte12:00 Noon on (A) in the case of a Competitive Bid Loan at an Absolute Rate, North Carolina time on the Quotation Date)Date (or such other time and date as the Borrower and the Administrative Agent may agree) or (B) in the case of a Competitive Bid Loan at a Term Benchmark Competitive Rate, the third Business Day prior to the proposed date of borrowing) notify the Borrower in writing by facsimile Administrative Agent and Revolving Credit Lenders of the terms of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.03(c) hereof. The Administrative Agent's notice to the Borrower shall specify (ix) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and as well as the ranges of bids submitted for each Interest Period requested, (iiy) the respective principal amount amounts and interest rate Absolute Rates or Term Benchmark Competitive Rates, as the case may be, so offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). As promptly as possible, the Administrative Agent shall forward to the Borrower copies of each Competitive Bid Quote submitted to the Administrative Agent.
and (fz) Not later than 11:00 a.m. Charlotte, North Carolina time 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), the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance of the Competitive Bid Quotes so notified to it pursuant to Section 2.03(e) hereof (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 LenderQuotes. 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 a any Competitive Bid Quote for the entire principal amount of the in whole or in part (provided that any Competitive Bid Loan so offered Quote accepted in part shall be at least $5,000,000 or any portion in increments of $1,000,000 in excess thereof. The Borrower's acceptance of Competitive Bid Quotes is further subject to the following conditions); 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 in integral multiples an increment of $100,000 1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a2.5(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 interest rates Absolute Rates or Term Benchmark Competitive Rates, as the case may be, beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Quotes Quote where the Administrative Agent has correctly advised the Borrower that such Competitive Bid Quote fails to comply with Section 2.03(d2.5(c)(ii) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.03(a2.5(a) hereof).
(g) . Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, accept a Competitive Bid Quote that does not contain the lowest Absolute Rate or Term Benchmark Competitive Rates, as the case may be, where acceptance of the Competitive Bid Quote containing the lowest Absolute Rate or Term Benchmark 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 or more Revolving Credit Lenders with the same Absolute Rate Rates or Index RateTerm Benchmark Competitive Rates, as applicablethe case may be, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are permitted to be accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Index Term Benchmark Competitive Rates, as applicablethe case may be, offered by any Revolving Credit Lender for such related Interest Period, 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 or in integral multiples increments of $100,000 in excess thereof) 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 2.03(f)(iii2.5(d)(iii) hereof shall be conclusive in the absence of manifest error.
(he) Any Revolving Credit Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:00 p.m. Charlotte, North Carolina time P.M. on the date specified for the making of such Loan, make the amount of such Loan available to the Administrative Agent at Borrower as shall be directed by the Principal Office Authorized Representative in Dollars and in immediately available funds.
(f) From time to time, for account of the Borrower. The amount so received by Borrower shall furnish such information to the Administrative Agent shall, subject as the Administrative Agent may request relating to the terms making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and conditions of this Agreement, be made available to the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an account specified by the Borrowermaturities thereof.
(ig) The parties hereto agree that each Borrower may request the Administrative Agent to receive the Competitive Bid Loan Quotes, in which event the Administrative Agent shall (as defined A) in the Prior Credit Agreement) advanced by a Lender under the Prior Credit Agreement and described on Schedule 2.03(i) hereto shall be deemed to be as case of the Closing Date a Competitive Bid Loan hereunder 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 Term Benchmark Competitive Rate, by 10:00 A.M. on the date a Competitive Bid Quote is submitted, notify the Borrower of the terms of any Competitive Bid Quote submitted by a Revolving Credit Lender that is 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 evidenced (B) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rate, as the case may be, offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of borrowing, in the case of Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as 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's . Together with each notice of a request for Competitive Bid NoteQuotes 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 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Competitive Bid Loans. (a) In addition Borrower may request that each --------------------- Lender submit Competitive Bids (on a several basis) to Revolving Credit LoansBorrower on any Business Day during the Commitment Period, at any time prior to the Revolving Credit Termination Date during which the conditions set forth in Section 2.03(b) below provided that all Lenders are satisfied, the Borrower may, as set forth in this Section 2.03, request the Lenders requested to make offers to make Competitive Bid Loans to the Borrower in Dollars. The Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers, in the manner set forth in this Section 2.03. The making of a Competitive Bid Loan on the same basis at the same time. In order to request Competitive Bids, Borrower shall deliver by any Lender shall hand or telecopy to Agent a Competitive Bid Request, to be received by Agent not reduce such Lender's Revolving Credit Commitment except as calculated based upon later than 9:00 a.m., Dallas time one Business Day before the Total Revolving Credit Commitment as reduced by such date specified for a proposed Competitive Bid Loan. A Competitive Bid OutstandingsRequest that does not conform substantially to the format of Exhibit I may be rejected in Agent's sole discretion, together with the sum of all other Outstandings, shall not exceed the Total Revolving Credit Commitment at any time.
(b) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative and Agent (which shall promptly notify the Lenders) either Borrower of such rejection by telecopier. After receiving an Index Rate acceptable Competitive Bid Loan Request to be received Request, Agent shall no later than 11:00 a.m. Charlotte12:00 noon, North Carolina Dallas time three (3) LIBOR Business Days prior to on the date of borrowing proposed therein or an Absolute Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time one (1) Business Day prior to the date of borrowing proposed therein (or such other time and date as the Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree). The Borrower may request offers to make Competitive Bid Loans for up to four (4) different Interest Periods in a single notice (a "Competitive Bid Borrowing"). Each such Competitive Bid Quote Request shall be is received by Agent, by telecopier deliver to Lenders an Invitation to Bid substantially in the form of Exhibit I attached hereto and incorporated herein by reference and shall specify as J with respect thereto.
(b) Each Lender may, in its sole discretion, make one or more Competitive Bids to Agent responsive to each Competitive Bid BorrowingRequest given by Borrower. Each Competitive Bid by a Lender must be received by Agent by telecopier not later than 9:00 a.m., Dallas time on the date specified for a proposed Competitive Bid Loan. Multiple bids may be accepted by Agent. Competitive Bids that do not conform substantially to the format of Exhibit K may be rejected by Agent after conferring with, and upon the instruction of, Borrower, and Agent shall notify the bidding Lender of such rejection as soon as practicable. If any Lender shall elect not to make a Competitive Bid, such Lender shall so notify Agent by telecopier not later than 9:00 a.m., Dallas time, on the date specified for a Competitive Bid Loan; 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. A Competitive Bid submitted by a Lender shall be irrevocable.
(c) Promptly, and in no event later than 9:30 a.m., Dallas time, on the date specified for a proposed Competitive Bid Loan, Agent shall notify Borrower by telecopier of all the Competitive Bids made, the Competitive Bid Rate and the principal amount of each Competitive Bid Loan in respect of which a Competitive Bid was made, and the identity of each Lender that made each Competitive Bid. Agent shall send a copy of all Competitive Bids to Borrower for its records as soon as practicable after completion of the bidding process.
(d) Borrower may, subject only to the provisions hereof, accept or reject any Competitive Bid. Borrower shall notify Agent by telecopier pursuant to a Competitive Bid Accept/Reject Letter whether and to what extent Borrower has decided to accept or reject any or all of the Competitive Bids, not later than 10:30 a.m., Dallas time, on the date specified for a proposed Competitive Bid Loan; provided, however, that:
(i) the proposed date failure by Borrower to accept or reject any Competitive Bid within the time period specified herein shall be deemed to be a rejection of such Competitive Bid Borrowing, which shall be a Business Day in the case of an Absolute Rate Bid Loan Request or a LIBOR Business Day in the case of an Index Rate Bid Loan Request;Bid,
(ii) the aggregate amount of such the Competitive Bids accepted by Borrower shall not exceed the principal amount specified in the Competitive Bid Borrowing, which shall be at least $5,000,000 (or in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated; Request,
(iii) the duration aggregate amount of the Interest Period or Interest Periods applicable thereto (which may be not less than 7 nor more than 360 days with respect to an Absolute Rate all Lenders' Competitive Bid Loan Loans outstanding at any time shall not exceed $100,000,000 and which must be one, two, three, six or twelve months with respect to an Index Rate Competitive Bid Loan); andthe aggregate amount of all Loans outstanding shall not exceed the Commitment,
(iv) if Borrower shall accept a Competitive Bid or Competitive Bids made at a particular Competitive Bid Rate, but the date on which amount of such Competitive Bid or Competitive Bids shall cause the total amount of Competitive Bids to be accepted by Borrower to exceed the amount specified in the Competitive Bid Quotes are to be submitted if it is before the proposed date Request, then Borrower shall accept a portion of borrowing (the date on which such Competitive Bid Quotes are or Competitive 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 Competitive Bids at such Competitive Bid Rate, shall be submitted is called made pro rata in accordance with the "Quotation Date").amount of each such Competitive Bid at such Competitive Bid Rate, and
(iv) Each Lender may submit one or more no Competitive Bid Quotes, each containing shall be accepted for a Competitive Bid Loan unless such Competitive Bid Loan is in a minimum principal amount of $1,000,000 and an offer to make integral multiple of $500,000 and is part of a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if the Borrower's request under Section 2.03(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 Administrative Agent not later than 10:00 a.m. Charlotte, North Carolina time 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) provided that any Competitive Bid Quote may be submitted by NationsBank only if NationsBank notifies the Borrower of the terms of the offer contained therein not later than 9:45 a.m. Charlotte, North Carolina time on the Quotation Date. Subject to Articles IV, V and IX hereof, any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrower.
(d) Each Competitive Bid Quote shall be substantially in the form of Exhibit J attached hereto and incorporated herein by reference and shall specify:
(i) the proposed date of borrowing and the Interest Periods applicable to all or each portion thereof;
(ii) the minimum principal amount of the $5,000,000; provided further, however, that if a Competitive Bid Loan must be in an amount less than $1,000,000 because of the provisions of clause (v) above, such Competitive Bid Loan may be for which each such offer is being madea minimum of $500,000 or any integral multiple thereof, which principal amount and in calculating the pro rata allocation of acceptances or portions of multiple bids at a particular Competitive Bid Rate pursuant to clause (v), the amounts shall be at least $1,000,000 (or in rounded to integral multiples of $100,000 500,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans for a manner 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;
(iii) the rate of interest offered for each such Competitive Bid Loan; and
(iv) 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 be in the applicable Competitive Bid Quote Request. 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 Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(e) The Administrative Agent shall 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), notify the Borrower in writing by facsimile sole and absolute discretion of the terms of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.03(c) hereof. The Administrative Agent's notice to the Borrower shall specify (i) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (ii) the respective principal amount and interest rate so offered by each Lender (identifying the Lender that made each Competitive Bid Quote). As promptly as possible, the Administrative Agent shall forward to the Borrower copies of each Competitive Bid Quote submitted to the Administrative Agent.
(f) Not later than 11:00 a.m. Charlotte, North Carolina time 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), the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance of the Competitive Bid Quotes so notified to it pursuant to Section 2.03(e) hereof (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. 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 a Competitive Bid Quote for the entire principal amount of the Competitive Bid Loan so offered or any portion thereof. The Borrower's acceptance of Competitive Bid Quotes is further subject to the following conditions:
(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 in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes may be made only in ascending order of interest rates beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Quotes where the Administrative Agent has correctly advised the Borrower that such Competitive Bid Quote fails to comply with Section 2.03(d) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.03(a) hereof).
(g) If Competitive Bid Quotes are made by two or more Lenders with the same Absolute Rate or Index Rate, as applicable, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are permitted to be accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Index Rates, as applicable, offered by any Lender for such related Interest Period, 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 or in integral multiples of $100,000 in excess thereof) 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 as provided in Section 2.03(f)(iii) hereof shall be conclusive in the absence of manifest error.
(h) Any Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:00 p.m. Charlotte, North Carolina time on the date specified for the making of such Loan, make the amount of such Loan available to the Administrative Agent at the Principal Office in Dollars and in immediately available funds, for account of the Borrower. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an account specified by the Borrower.
(i) The parties hereto agree that each Competitive Bid Loan (as defined in the Prior Credit Agreement) advanced by a Lender under the Prior Credit Agreement and described on Schedule 2.03(i) hereto shall be deemed to be as of the Closing Date a Competitive Bid Loan hereunder and evidenced by such Lender's Competitive Bid Note.
Appears in 1 contract
Competitive Bid Loans. (a) In addition to borrowings of Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date during which the conditions set forth in Section 2.03(b) below are satisfied, the Borrower may, as set forth in this Section 2.03, request the Lenders to make offers to make Competitive Bid Loans to the Borrower in Dollars. The Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers, offers in the manner set forth in this Section 2.03. The making of a Competitive Bid Loan by any Lender shall not reduce such Lender's available Revolving Credit Commitment except as calculated based upon a result of such Competitive Bid Loan reducing the availability under the Total Revolving Credit Commitment as reduced by such Commitment. Immediately after giving effect to each Competitive Bid Loan. Competitive Bid Outstandings, together with the sum of all other Outstandings, Total Outstandings shall not exceed the Total Revolving Credit Commitment at any timeCommitment. 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 Administrative Agent (which shall promptly notify the Lenders) either an Index Rate notice (a "Competitive Bid Loan Request Quote Request") to be received no later than 11:00 a.m. Charlotte, North Carolina time three (3) LIBOR Business Days prior to 10:00 A.M. on the date of borrowing proposed therein or an Absolute Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time one (1) Business Day prior to immediately preceding the date of borrowing proposed therein (or such other time and date as the Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree). The Borrower may request offers from Lenders to make Competitive Bid Loans for up to four (4) different Interest Periods in a single notice 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 Bid Borrowing")) of one or more Competitive Bid Loans from the Lenders. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit I attached D hereto and incorporated herein by reference and shall specify as to each Competitive Bid Borrowing:
(i) the proposed date of such Competitive Bid Borrowing, which shall be a Business Day in the case of an Absolute Rate Bid Loan Request or a LIBOR Business Day in the case of an Index Rate Bid Loan RequestDay;
(ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least $5,000,000 (or in integral multiples a larger multiple of $100,000 in excess thereof1,000,000) but shall not cause the limits specified in Section 2.03(a) hereof to be violated; ;
(iii) the duration of the Interest Period or Interest Periods applicable thereto (which may be not less than 7 nor more than 360 days with respect to an Absolute Rate Competitive Bid Loan and which must be one, two, three, six or twelve months with respect to an Index Rate Competitive Bid Loan)thereto; and
(iv) 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 2.03(b), no Competitive Bid Quote Request shall be given within five (5) Business Days (or such other 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.
(i) Each Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid Loan Loan, in response to any Competitive Bid Quote Request; provided that, if the Borrower's request under Section 2.03(b) hereof specified 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 Administrative Agent not later than 10:00 a.m. A.M. Charlotte, North Carolina time 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) provided ; the Agent shall promptly notify all Lenders of such other agreed upon time and date); provided, that any Competitive Bid Quote may be submitted by NationsBank the Agent (or its Applicable Lending Office) only if NationsBank the Agent (or such Applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than 9:45 a.m. A.M. (or 15 minutes prior to such other agreed upon time) Charlotte, North Carolina time on the Quotation Date. Subject to Articles IV, V and IX hereofthe express provisions of this Agreement, any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on at the instructions instruction of the Borrower.
(dii) Each Competitive Bid Quote shall be substantially in the form of Exhibit J attached F hereto and incorporated herein by reference and shall specify:
(iA) the proposed date of borrowing and the Interest Periods applicable to all or each portion thereofPeriod therefor;
(iiB) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount shall be at least $1,000,000 (or in integral multiples a larger multiple of $100,000 in excess thereof1,000,000); provided that (x) the aggregate principal amount of all Competitive Bid Loans for which a Lender submits Competitive Bid Quotes in response to a Competitive Bid Quote Request may not exceed the principal amount of the Competitive Bid Borrowing for a particular the Interest Period for which offers were requested, and (y) the limits specified in Section 2.03(a) shall not be exceeded;
(iiiC) the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Competitive Bid LoanLoan (the "Absolute Rate"); and
(ivD) 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. Any subsequent , 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) The Agent shall, 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), notify the Borrower of the terms (i) of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.03(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 Request. Any such subsequent Competitive Bid Quote shall be disregarded by the Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(e) The Administrative Agent shall 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), notify the Borrower in writing by facsimile of the terms of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.03(c) hereof. The Administrative Agent's notice to the Borrower shall specify (iA) the aggregate principal amount of the Competitive Bid Borrowing Loans for which Competitive Bid Quotes have been received and (iiB) the respective principal amount amounts and interest rate Absolute Rates so offered by each Lender (identifying the Lender that made each Competitive Bid Quote). As promptly as possible, the Administrative Agent shall forward to the Borrower copies of each Competitive Bid Quote submitted to the Administrative Agent.
(fe) Not later than 11:00 a.m. A.M. Charlotte, North Carolina time 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), the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance of the Competitive Bid Quotes so notified to it pursuant to Section 2.03(e2.03(d) hereof (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. In the case of acceptance, such notice shall specify the aggregate principal amount of offers Competitive Bid Quotes for each Interest Period that are accepted. The Borrower may accept a any Competitive Bid Quote for the entire principal amount of the in whole or in part (provided that any Competitive Bid Loan so offered Quote accepted in part shall be at least $1,000,000 or any portion thereof. The Borrower's acceptance a larger multiple of Competitive Bid Quotes is further subject to the following conditions$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 in integral multiples a larger multiple of $100,000 in excess thereof1,000,000) but shall not cause the limits specified in Section 2.03(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes may be made only in ascending order of interest rates Absolute Rates, beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Quotes Quote where the Administrative Agent has correctly advised the Borrower that such Competitive Bid Quote offer fails to comply with Section 2.03(d2.03(c)(ii) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.03(a) hereof).
(g) ). If Competitive Bid Quotes are made by two or more Lenders with the same Absolute Rate or Index Rate, as applicableRates, for a greater an aggregate principal amount that is greater than the amount in respect of which Competitive Bid Quotes are permitted to be accepted for the related Interest Period (after taking into account the acceptance of all Competitive Bid QuotesQuotes with lower Absolute Rates, if any, of all lower Absolute Rates or Index Rates, as applicable, 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 or in integral multiples of $100,000 in excess thereof1,000,000) 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 lowest bid Absolute Rates as provided in Section 2.03(f)(iii2.03(e)(iii) hereof shall be conclusive in the absence of manifest error.
(hf) Any Lender whose offer to make any Competitive Bid Loan Quote has been accepted in accordance with Section 2.03(e) shall, not later than 1:00 p.m. 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 Borrower available to the Administrative Agent at the Principal Office in Dollars and in immediately available funds, for the account of the Borrower. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an account specified the Borrower's Account or otherwise as shall be directed by the Borrower.
(i) The parties hereto agree that each Competitive Bid Loan (as defined in the Prior Credit Agreement) advanced by a Lender under the Prior Credit Agreement and described on Schedule 2.03(i) hereto shall be deemed to be as of the Closing Date a Competitive Bid Loan hereunder and evidenced by such Lender's Competitive Bid Note.
Appears in 1 contract
Samples: Credit Agreement (Saks Inc)
Competitive Bid Loans. (a) In addition to borrowings of Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date during which the conditions set forth in Section 2.03(b) below are satisfied, the Borrower may, as set forth in this Section 2.03, request the Lenders to make offers to make Competitive Bid Loans to the Borrower in Dollars. The Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers, offers in the manner set forth in this Section 2.03. The making of a Competitive Bid Loan by any Lender shall not reduce such Lender's available Revolving Credit Commitment except as calculated based upon a result of such Competitive Bid Loan reducing the availability under the Total Revolving Credit Commitment as reduced by such Commitment. Immediately after giving effect to each Competitive Bid Loan. Competitive Bid Outstandings, together with the sum of all other Outstandings, Revolving Credit Outstandings shall not exceed the Total Revolving Credit Commitment at any timeCommitment. 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 Administrative Agent (which shall promptly notify the Lenders) either an Index Rate notice (a "Competitive Bid Loan Request Quote Request") to be received no later than 11:00 a.m. Charlotte, North Carolina time three (3) LIBOR Business Days prior to 10:00 A.M. on the date of borrowing proposed therein or an Absolute Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time one (1) Business Day prior to immediately preceding the date of borrowing proposed therein (or such other time and date as the Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree). The Borrower may request offers from Lenders to make Competitive Bid Loans for up to four (4) different Interest Periods in a single notice 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 Bid Borrowing")) of one or more Competitive Bid Loans from the Lenders. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit I attached D hereto and incorporated herein by reference and shall specify as to each Competitive Bid Borrowing:
(i) the proposed date of such Competitive Bid Borrowing, which shall be a Business Day in the case of an Absolute Rate Bid Loan Request or a LIBOR Business Day in the case of an Index Rate Bid Loan RequestDay;
(ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least $5,000,000 (or in integral multiples a larger multiple of $100,000 in excess thereof1,000,000) but shall not cause the limits specified in Section 2.03(a) hereof to be violated; ;
(iii) the duration of the Interest Period or Interest Periods applicable thereto (which may be not less than 7 nor more than 360 days with respect to an Absolute Rate Competitive Bid Loan and which must be one, two, three, six or twelve months with respect to an Index Rate Competitive Bid Loan)thereto; and
(iv) 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 2.03(b), no Competitive Bid Quote Request shall be given within five (5) Business Days (or such other 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.
(i) Each Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid Loan Loan, in response to any Competitive Bid Quote Request; provided that, if the Borrower's request under Section 2.03(b) hereof specified 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 Administrative Agent not later than 10:00 a.m. A.M. Charlotte, North Carolina time 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) provided ; the Agent shall promptly notify all Lenders of such other agreed upon time and date); provided, that any Competitive Bid Quote may be submitted by NationsBank the Agent (or its Applicable Lending Office) only if NationsBank the Agent (or such Applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than 9:45 a.m. A.M. (or 15 minutes prior to such other agreed upon time) Charlotte, North Carolina time on the Quotation Date. Subject to Articles IV, V and IX hereofthe express provisions of this Agreement, any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on at the instructions instruction of the Borrower.
(dii) Each Competitive Bid Quote shall be substantially in the form of Exhibit J attached F hereto and incorporated herein by reference and shall specify:
(iA) the proposed date of borrowing and the Interest Periods applicable to all or each portion thereofPeriod therefor;
(iiB) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount shall be at least $1,000,000 (or in integral multiples a larger multiple of $100,000 in excess thereof1,000,000); provided that (x) the aggregate principal amount of all Competitive Bid Loans for which a Lender submits Competitive Bid Quotes in response to a Competitive Bid Quote Request may not exceed the principal amount of the Competitive Bid Borrowing for a particular the Interest Period for which offers were requested, and (y) the limits specified in Section 2.03(a) shall not be exceeded;
(iiiC) the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Competitive Bid LoanLoan (the "Absolute Rate"); and
(ivD) 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. Any subsequent , 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) The Agent shall, 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), notify the Borrower of the terms (i) of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.03(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 Request. Any such subsequent Competitive Bid Quote shall be disregarded by the Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(e) The Administrative Agent shall 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), notify the Borrower in writing by facsimile of the terms of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.03(c) hereof. The Administrative Agent's notice to the Borrower shall specify (iA) the aggregate principal amount of the Competitive Bid Borrowing Loans for which Competitive Bid Quotes have been received and (iiB) the respective principal amount amounts and interest rate Absolute Rates so offered by each Lender (identifying the Lender that made each Competitive Bid Quote). As promptly as possible, the Administrative Agent shall forward to the Borrower copies of each Competitive Bid Quote submitted to the Administrative Agent.
(fe) Not later than 11:00 a.m. A.M. Charlotte, North Carolina time 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), the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance of the Competitive Bid Quotes so notified to it pursuant to Section 2.03(e2.03(d) hereof (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. In the case of acceptance, such notice shall specify the aggregate principal amount of offers Competitive Bid Quotes for each Interest Period that are accepted. The Borrower may accept a any Competitive Bid Quote for the entire principal amount of the in whole or in part (provided that any Competitive Bid Loan so offered Quote accepted in part shall be at least $1,000,000 or any portion thereof. The Borrower's acceptance a larger multiple of Competitive Bid Quotes is further subject to the following conditions$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 in integral multiples a larger multiple of $100,000 in excess thereof1,000,000) but shall not cause the limits specified in Section 2.03(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes may be made only in ascending order of interest rates Absolute Rates, beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Quotes Quote where the Administrative Agent has correctly advised the Borrower that such Competitive Bid Quote offer fails to comply with Section 2.03(d2.03(c)(ii) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.03(a) hereof).
(g) ). If Competitive Bid Quotes are made by two or more Lenders with the same Absolute Rate or Index Rate, as applicableRates, for a greater an aggregate principal amount that is greater than the amount in respect of which Competitive Bid Quotes are permitted to be accepted for the related Interest Period (after taking into account the acceptance of all Competitive Bid QuotesQuotes with lower Absolute Rates, if any, of all lower Absolute Rates or Index Rates, as applicable, 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 or in integral multiples of $100,000 in excess thereof1,000,000) 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 lowest bid Absolute Rates as provided in Section 2.03(f)(iii2.03(e)(iii) hereof shall be conclusive in the absence of manifest error.
(hf) Any Lender whose offer to make any Competitive Bid Loan Quote has been accepted in accordance with Section 2.03(e) shall, not later than 1:00 p.m. 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 Borrower available to the Administrative Agent at the Principal Office in Dollars and in immediately available funds, for the account of the Borrower. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an account specified the Borrower's Account or otherwise as shall be directed by the Borrower.
(i) The parties hereto agree that each Competitive Bid Loan (as defined in the Prior Credit Agreement) advanced by a Lender under the Prior Credit Agreement and described on Schedule 2.03(i) hereto shall be deemed to be as of the Closing Date a Competitive Bid Loan hereunder and evidenced by such Lender's Competitive Bid Note.
Appears in 1 contract
Samples: Credit Agreement (Saks Inc)
Competitive Bid Loans. (a) In addition to Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date during which the conditions set forth in Section 2.03(b) below are satisfiedand provided no Default or Event of Default exists hereunder, the Borrower may, as set forth in this Section 2.032.5, request the Revolving Credit Lenders to make offers to make Competitive Bid Loans to the Borrower in Dollars. The Revolving Credit Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers, offers in the manner set forth in this Section 2.032.5. The making of a There may be no more than ten (10) Interest Periods, and no more than one
(1) one-week Interest Periods, for all Revolving Credit Loans and Competitive Bid Loans outstanding at the same time (for which purpose Interest Periods for each Eurodollar Revolving Credit Loan and each Competitive Bid Loan by any Lender shall be deemed to be different Interest Periods even if they are coterminous). The aggregate principal amount of all Outstanding Revolving Credit Obligations shall not reduce such Lender's Revolving Credit Commitment except as calculated based upon exceed the Total Revolving Credit Commitment as reduced by such at any time. The aggregate principal amount of all outstanding Competitive Bid Loan. Competitive Bid Outstandings, together with the sum of all other Outstandings, Loans shall not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any time.
(b) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative Agent and the Revolving Credit Lenders notice (which shall promptly notify the Lendersa “Competitive Bid Quote Request”) either an Index Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time three 12:00 Noon on (3A) LIBOR Business Days prior to the date of borrowing proposed therein or an Absolute Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time one (1) fourth Business Day prior to the date of borrowing proposed therein therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Eurodollar Competitive Rate or (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, Agent may agree). The Borrower may request offers to make Competitive Bid Loans for up to four three (43) different Interest Periods in a single notice 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 Bid Borrowing")”) and there shall not be outstanding at any one time more than four (4) Competitive Bid Borrowings. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit I G attached hereto and incorporated herein by reference and shall specify as to each Competitive Bid Borrowing:
(i) the proposed date of such Competitive Bid Borrowingborrowing, which shall be a Business Day in the case of an Absolute Rate Bid Loan Request or a LIBOR Business Day in the case of an Index Rate Bid Loan RequestDay;
(ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least $5,000,000 10,000,000 (or in integral multiples increments of $100,000 1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a2.5(a) hereof to be violated; ;
(iii) the duration of the Interest Period or applicable thereto;
(iv) whether the Competitive Bid Quote Request for a particular Interest Periods applicable thereto (which may be not less than 7 nor more than 360 days with respect to an Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Eurodollar Competitive Bid Loan and which must be one, two, three, six or twelve months with respect Rate;
(v) whether the Borrower shall have the right to an Index Rate prepay a requested Competitive Bid Loan); and
(ivvi) 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 two (2) Competitive Bid Quote Requests shall be given within five (5) Business Days (or such other number of days as the Borrower and the Administrative Agent may agree) of any other Competitive Bid Quote Request.
(i) Each Revolving Credit Lender may submit one or more Competitive 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 ’s request under Section 2.03(b2.5(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 Administrative Agent Borrower not later than 10:00 a.m. Charlotte9:30 A.M. on (A) the third Business Day prior to the proposed date of borrowing, North Carolina time on in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the Quotation Date Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or or, in any such case, such other time and date as the Borrower and the Administrative Agent, with the consent of the Required Lenders, Agent may agree) provided that if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g), any Competitive Bid Quote may be submitted by NationsBank JPMorgan Chase Bank (or its applicable Lending Office) only if NationsBank JPMorgan Chase Bank (or such applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than 9:45 a.m. Charlotte, North Carolina time 9:15 A.M. on the Quotation Date. Subject to Articles IV, V and IX hereof, any Any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrower.
(dii) Each Competitive Bid Quote shall be substantially in the form of Exhibit J H attached hereto and incorporated herein by reference and shall specify:
(iA) the proposed date of borrowing and the Interest Periods applicable to all or each portion thereofPeriod therefor;
(iiB) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount shall be at least $1,000,000 5,000,000 (or in integral multiples increments of $100,000 1,000,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans 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;
(iiiC) in the case of a Competitive Bid Quote for Competitive Bid Loans 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 Competitive Bid LoanLoan (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
(ivE) 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 RequestRequest 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 Administrative Agent Borrower unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(ed) The Administrative Agent Borrower shall as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 10:30 a.m. Charlotte12:00 Noon on (A) in the case of a Competitive Bid Loan at an Absolute Rate, North Carolina time on the Quotation Date)Date (or such other time and date as the Borrower and the Administrative Agent may agree) or (B) in the case of a Competitive Bid Loan at a Eurodollar Competitive Rate, the third Business Day prior to the proposed date of borrowing) notify the Borrower in writing by facsimile Administrative Agent and Revolving Credit Lenders of the terms of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.03(c) hereof. The Administrative Agent's notice to the Borrower shall specify (ix) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and as well as the ranges of bids submitted for each Interest Period requested, (iiy) the respective principal amount amounts and interest rate 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). As promptly as possible, the Administrative Agent shall forward to the Borrower copies of each Competitive Bid Quote submitted to the Administrative Agent.
and (fz) Not later than 11:00 a.m. Charlotte, North Carolina time 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), the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance of the Competitive Bid Quotes so notified to it pursuant to Section 2.03(e) hereof (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 LenderQuotes. 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 a any Competitive Bid Quote for the entire principal amount of the in whole or in part (provided that any Competitive Bid Loan so offered Quote accepted in part shall be at least $5,000,000 or any portion in increments of $1,000,000 in excess thereof. The Borrower's acceptance of Competitive Bid Quotes is further subject to the following conditions); 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 in integral multiples an increment of $100,000 1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a2.5(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 interest rates 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 Quotes Quote where the Administrative Agent has correctly advised the Borrower that such Competitive Bid Quote fails to comply with Section 2.03(d2.5(c)(ii) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.03(a2.5(a) hereof).
(g) . Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, accept a Competitive Bid Quote that does not contain the lowest Absolute Rate or Eurodollar Competitive Rates, as the case may be, where acceptance of the Competitive Bid Quote 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 or more Revolving Credit Lenders with the same Absolute Rate Rates or Index RateEurodollar Competitive Rates, as applicablethe case may be, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are permitted to be accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Index Eurodollar Competitive Rates, as applicablethe case may be, offered by any Revolving Credit Lender for such related Interest Period, 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 or in integral multiples increments of $100,000 in excess thereof) 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 2.03(f)(iii2.5(d)(iii) hereof shall be conclusive in the absence of manifest error.
(he) Any Revolving Credit Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:00 p.m. Charlotte, North Carolina time P.M. on the date specified for the making of such Loan, make the amount of such Loan available to the Administrative Agent at Borrower as shall be directed by the Principal Office Authorized Representative in Dollars and in immediately available funds.
(f) From time to time, for account of the Borrower. The amount so received by Borrower shall furnish such information to the Administrative Agent shall, subject as the Administrative Agent may request relating to the terms making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and conditions of this Agreement, be made available to the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an account specified by the Borrowermaturities thereof.
(ig) The parties hereto agree that each Borrower may request the Administrative Agent to receive the Competitive Bid Loan Quotes, in which event the Administrative Agent shall (as defined A) in the Prior Credit Agreement) advanced by a Lender under the Prior Credit Agreement and described on Schedule 2.03(i) hereto shall be deemed to be as case of the Closing Date a Competitive Bid Loan hereunder 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 Lender that is 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 evidenced (B) the respective principal amounts and Absolute Rates or Eurodollar Competitive Rate, as the case may be, offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of borrowing, in 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 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's . Together with each notice of a request for Competitive Bid NoteQuotes 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 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Competitive Bid Loans. (a) In addition to making Revolving Credit Loans, at any time prior Loans pursuant to the Revolving Credit Termination Date during which Commitments pursuant to Section 2.1 above, the Borrower may on the terms and conditions set forth in Section 2.03(b) below are satisfied, the Borrower may, as set forth in this Section 2.03, herein request the Lenders to make offers to make Competitive Bid Loans for amounts up to the Borrower in Dollarsaggregate amount of any Lender's unused Revolving Credit Commitment. The Lenders may, but shall have no obligation to, make such offers offers, and the Borrower may, but shall have no obligation to, to accept any such offers, offers in the manner set forth in this Section 2.03. The making of a Competitive Bid Loan by any Lender shall not reduce such Lender's Revolving Credit Commitment except as calculated based upon the Total Revolving Credit Commitment as reduced by such Competitive Bid Loan. Competitive Bid Outstandings, together with the sum of all other Outstandings, shall not exceed the Total Revolving Credit Commitment at any timeherein.
(b) When In order to request Competitive Bids, the Borrower wishes shall telecopy to request offers to make the Lenders a duly completed Competitive Bid Loans, it shall give Request in the Administrative Agent (which shall promptly notify the Lenders) either an Index Rate Bid Loan Request form of Exhibit E attached hereto to be received no later than 11:00 a.m. Charlottenoon (Nashville, North Carolina time three (3Tennessee time) LIBOR Business Days prior to on the date day of borrowing the proposed therein or an Absolute Rate Competitive Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time one (1) Business Day prior to the date of borrowing proposed therein (or such other time and date as the Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree)Loans. The Borrower may request offers to make Competitive Bid Loans for up to four (4) five different Interest Periods in a single notice (notice; provided, however, that the request for each separate Interest Period shall be deemed to be a "separate Competitive Bid Borrowing")Request. The Competitive Bid Request shall in each case refer to this Agreement and specify (i) the date of such Loan or Loans (which shall be a Business Day) and (ii) the aggregate principal amount thereof, and (iii) the Interest Period requested with respect thereto.
(c) Each Lender may, in its sole discretion, make one or more Competitive Bids to the Borrower responsive to each Competitive Bid Request. Each such Competitive Bid Quote Request shall by a Lender must be received by the Borrower via telecopy, substantially in the form of Exhibit I F attached hereto and incorporated herein by reference and shall specify as to each hereto, not later than 12:30 p.m. (Nashville, Tennessee time) on the Business Day of the proposed Competitive Bid Borrowing:
Loan. Competitive Bids that do not conform substantially to the format of Exhibit F may be rejected by the Borrower, and the Borrower 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 proposed date principal amount, (ii) the Competitive Bid Rate or Rates at which the Lender is prepared to make the Competitive Bid Rate Advance or Advances, and (iii) the Interest Period and the last day thereof. If any Lender shall elect not to make a Competitive Bid, such Lender shall so notify the Borrower 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 Rate Advance as part of such Competitive Bid Borrowing, which Loan. A Competitive Bid submitted by a Lender pursuant to this paragraph (c) shall be a Business Day in the case of an Absolute Rate Bid Loan Request or a LIBOR Business Day in the case of an Index Rate Bid Loan Request;
irrevocable (ii) the aggregate amount of such absent manifest error). No Competitive Bid Borrowing, which shall be at least $5,000,000 (or in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated; (iii) the duration of the Interest Period or Interest Periods applicable thereto (which submitted by a Lender may be not less than 7 nor more than 360 days with respect to an Absolute Rate Competitive Bid Loan and which must be one, two, three, six or twelve months with respect to an Index Rate Competitive Bid Loan); and
(iv) 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").
(i) Each Lender may submit one or more Competitive 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) 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 Administrative Agent not later than 10:00 a.m. Charlotte, North Carolina time 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) provided that any Competitive Bid Quote may be submitted conditioned upon acceptance by NationsBank only if NationsBank notifies the Borrower of the terms all (or some specified minimum) of the offer contained therein not later than 9:45 a.m. Charlotte, North Carolina time on the Quotation Date. Subject to Articles IV, V and IX hereof, any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrower.
(d) Each Competitive Bid Quote shall be substantially in the form of Exhibit J attached hereto and incorporated herein by reference and shall specify:
(i) the proposed date of borrowing and the Interest Periods applicable to all or each portion thereof;
(ii) the principal amount of the Competitive Bid Loan for which each such offer Competitive Bid Request is being made.
(d) The Borrower may, which principal amount shall be at least $1,000,000 in its sole and absolute discretion, subject only to the provisions of this paragraph (d), accept or in integral multiples of $100,000 in excess thereof); provided that the aggregate principal amount of all reject any Competitive Bid Loans for which a referred to in paragraph (c) above. The Borrower shall notify each Lender submits Competitive Bid Quotes may by telephone, confirmed by telecopy, whether and to what extent it has decided to accept or reject any of or all the bids referred to in paragraph (c) above not exceed later than 1:00 p.m. (Nashville, Tennessee time) on the principal amount Business Day of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested;
(iii) the rate of interest offered for each such proposed Competitive Bid Loan; and
(iv) the identity of the quoting Lender. Unless otherwise agreed by the Administrative Agent and the Borrowerprovided, no Competitive Bid Quote shall contain qualifyinghowever, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request. 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 Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(e) The Administrative Agent shall 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), notify the Borrower in writing by facsimile of the terms of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.03(c) hereof. The Administrative Agent's notice to the Borrower shall specify (i) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (ii) the respective principal amount and interest rate so offered failure by each Lender (identifying the Lender that made each Competitive Bid Quote). As promptly as possible, the Administrative Agent shall forward to the Borrower copies of each Competitive Bid Quote submitted to the Administrative Agent.
(f) Not later than 11:00 a.m. Charlotte, North Carolina time 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), the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance of the Competitive Bid Quotes so notified to it pursuant to Section 2.03(e) hereof (and the failure of the Borrower to give such notice by such time shall constitute nonacceptancebe deemed to be a rejection of all the bids referred to in paragraph (c) and the Administrative Agent shall promptly notify each affected Lender. In the case of acceptanceabove, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrower may accept a Competitive Bid Quote for the entire principal amount of the Competitive Bid Loan so offered or any portion thereof. The Borrower's acceptance of Competitive Bid Quotes is further subject to the following conditions:
(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 amount of the Competitive Bids accepted by the Borrower shall not exceed the principal amount of each specified in the Competitive Bid Borrowing Request. A notice given by the Borrower pursuant to this paragraph (d) shall be at least $5,000,000 (or in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes may be made only in ascending order of interest rates beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Quotes where the Administrative Agent has correctly advised the Borrower that such Competitive Bid Quote fails to comply with Section 2.03(d) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.03(a) hereof)irrevocable.
(g) If Competitive Bid Quotes are made by two or more Lenders with the same Absolute Rate or Index Rate, as applicable, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are permitted to be accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Index Rates, as applicable, offered by any Lender for such related Interest Period, 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 or in integral multiples of $100,000 in excess thereof) 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 as provided in Section 2.03(f)(iii) hereof shall be conclusive in the absence of manifest error.
(he) Any Lender whose offer to make any a Competitive Bid Loan has been accepted shall, not later than 1:00 2:00 p.m. Charlotte(Nashville, North Carolina time Tennessee time) on the proposed date specified for of the making of such LoanCompetitive Bid Loan borrowing, make the amount of such Competitive Bid Loan available to the Administrative Agent at the Principal Office in Dollars and Borrower in immediately available funds, for account of the Borrower. The amount so received by the Administrative Agent shall, subject to funds on the terms and conditions agreed to between the Borrower and the relevant Lender, provided, however, that the obligations of the Borrower with respect to all Competitive Bid Loans shall rank pari passu with the obligations of the Borrower to Lenders under any of the Loans.
(f) Each Competitive Bid Loan shall be repaid on the earlier of (i) a date agreed upon between Borrower and Lender, and (ii) the Maturity Date.
(g) The proceeds of each of the Competitive Bid Loans shall be used by the Borrower for general corporate purposes, including working capital, Acquisitions permitted under this Agreement, be made available and capital expenditures.
(h) Any Lender's Competitive Bid Rate Advance shall reduce such Lender's obligation to lend its Pro Rata Share of the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an account specified by the Borrowerremaining unused Revolving Credit Loan Commitment.
(i) The parties hereto agree that each Borrower's obligations to pay the principal of, and interest on, the Competitive Bid Loan (as defined in the Prior Credit Agreement) advanced by a Loans to each Lender under the Prior Credit Agreement and described on Schedule 2.03(i) hereto shall be deemed evidenced by the records of each Lender and by the Competitive Bid Note payable to be as such Lender (or the assignor of such Lender). On each occasion that the Borrower shall submit a request for a Revolving Credit Loan or a request for a Letter of Credit, the Borrower shall certify to Administrative Agent the total outstanding principal amount of all Competitive Bid Loans and the respective Lenders holding such Competitive Bid Loans (designating the amount held by each such Lender).
(j) Notwithstanding any provision contained herein to the contrary, (i) upon the occurrence of an Event of Default and at any time thereafter while such Event of Default is continuing, and (ii) upon the delivery of written notice from the Administrative Agent to the Lenders advising that the Administrative Agent is invoking the requirements of this paragraph, each of the Closing Date a Competitive Bid Loan hereunder and evidenced by such Lender's Competitive Bid Note.Lenders, including
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Competitive Bid Loans. (a) In addition US Borrower may request that each Lender submit Competitive Bids (on a several basis) for requested maturities of thirty days or more to US Borrower on any Business Day during the Tranche A Commitment Period and/or the Tranche B Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date during which the conditions set forth in Section 2.03(b) below are satisfied, the Borrower mayPeriod, as set forth in this Section 2.03applicable, request the provided that all Lenders are requested to make offers to make Competitive Bid Loans to the Borrower in Dollars. The Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers, in the manner set forth in this Section 2.03. The making of a Competitive Bid Loan on the same basis at the same time. In order to request Competitive Bids, US Borrower shall deliver by any Lender shall hand or facsimile to US Agent a Competitive Bid Request, to be received by US Agent not reduce such Lender's Revolving Credit Commitment except as calculated based upon later than 9:00 a.m., Dallas, Texas time one Business Day before the Total Revolving Credit Commitment as reduced by such date specified for a proposed Competitive Bid Loan. A Competitive Bid OutstandingsRequest that does not conform substantially to the format of Exhibit H may be rejected in US Agent's sole discretion, together with the sum of all other Outstandings, shall not exceed the Total Revolving Credit Commitment at any time.
(b) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative and US Agent (which shall promptly notify the Lenders) either US Borrower of such rejection by facsimile. After receiving an Index Rate acceptable Competitive Bid Loan Request to be received Request, US Agent shall no later than 11:00 a.m. Charlotte12:00 noon, North Carolina Dallas, Texas time three (3) LIBOR Business Days prior to on the date of borrowing proposed therein or an Absolute Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time one (1) Business Day prior to the date of borrowing proposed therein (or such other time and date as the Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree). The Borrower may request offers to make Competitive Bid Loans for up to four (4) different Interest Periods in a single notice (a "Competitive Bid Borrowing"). Each such Competitive Bid Quote Request shall be is received by US Agent, by facsimile deliver to Lenders an Invitation to Bid substantially in the form of Exhibit I attached hereto and incorporated herein by reference and shall specify as with respect thereto.
(b) Each Lender may, in its sole discretion, make one or more Competitive Bids to US Agent responsive to each Competitive Bid BorrowingRequest given by US Borrower. Each Competitive Bid by a Lender must be received by US Agent by facsimile not later than 9:00 a.m., Dallas, Texas time on the date specified for a proposed Competitive Bid Loan. Multiple bids may be accepted by US Agent. Competitive Bids that do not conform substantially to the format of Exhibit J may be rejected by US Agent after conferring with, and upon the instruction of, US Borrower, and US Agent shall notify the bidding Lender of such rejection as soon as practicable. If any Lender shall elect not to make a Competitive Bid, such Lender shall so notify US Agent by facsimile not later than 9:00 a.m., Dallas, Texas time, on the date specified for a Competitive Bid Loan; 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 and by such failure such Lender shall be deemed to have rejected such Competitive Bid. A Competitive Bid submitted by a Lender shall be irrevocable.
(c) Promptly, and in no event later than 9:30 a.m., Dallas, Texas time, on the date specified for a proposed Competitive Bid Loan, US Agent shall notify US Borrower by facsimile of all the Competitive Bids made, the Competitive Bid Rate and the principal amount of each Competitive Bid Loan in respect of which a Competitive Bid was made, and the identity of each Lender that made each Competitive Bid. US Agent shall send a copy of all Competitive Bids to US Borrower for its records as soon as practicable after completion of the bidding process.
(d) US Borrower may, subject only to the provisions hereof, accept or reject any Competitive Bid. US Borrower shall notify US Agent by facsimile pursuant to a Competitive Bid Accept/Reject Letter whether and to what extent US Borrower has decided to accept or reject any or all of the Competitive Bids, not later than 10:00 a.m., Dallas, Texas time, on the date specified for a proposed Competitive Bid Loan; provided, however, that:
(i) the proposed date failure by US Borrower to accept or reject any Competitive Bid within the time period specified herein shall be deemed to be a rejection of such Competitive Bid Borrowing, which shall be a Business Day in the case of an Absolute Rate Bid Loan Request or a LIBOR Business Day in the case of an Index Rate Bid Loan Request;Bid,
(ii) the aggregate amount of such the Competitive Bids accepted by US Borrower shall not exceed the principal amount specified in the Competitive Bid Borrowing, which shall be at least $5,000,000 (or in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated; Request,
(iii) the duration aggregate amount of all outstanding US Loans and US LC Obligations shall never exceed the Interest Period or Interest Periods applicable thereto (which may be not less than 7 nor more than 360 days with respect to an Absolute Rate Competitive Bid Loan and which must be one, two, three, six or twelve months with respect to an Index Rate Competitive Bid Loan); andUS Maximum Credit Amount,
(iv) if US Borrower shall accept a Competitive Bid or Competitive Bids made at a particular Competitive Bid Rate, but the date on which amount of such Competitive Bid or Competitive Bids shall cause the total amount of Competitive Bids to be accepted by US Borrower to exceed the amount specified in the Competitive Bid Quotes are to be submitted if it is before the proposed date Request, then US Borrower shall accept a portion of borrowing (the date on which such Competitive Bid Quotes are or Competitive 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 Competitive Bids at such Competitive Bid Rate, shall be submitted is called made pro rata in accordance with the "Quotation Date").amount of each such Competitive Bid at such Competitive Bid Rate, and
(iv) Each Lender may submit one or more no Competitive Bid Quotes, each containing an offer to make shall be accepted for a Competitive Bid Loan in response to any unless such Competitive Bid Quote RequestLoan is in a minimum principal amount of US $5,000,000 or a higher integral multiple of US $1,000,000; provided thatprovided, however, that if a Competitive Bid Loan must be in an amount less than US $5,000,000 because of the Borrower's request under Section 2.03(bprovisions of clause (iv) hereof specified more than one Interest Periodabove, such Lender may make a single submission containing one or more Competitive Bid Quotes Loan may be for each such Interest Period. Each a minimum of US $1,000,000 or any higher integral multiple thereof, and in calculating the pro rata allocation of acceptances or portions of multiple bids at a particular Competitive Bid Quote must be submitted Rate pursuant to clause (iv), the Administrative Agent not later than 10:00 a.m. Charlotte, North Carolina time 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) provided that any Competitive Bid Quote may be submitted by NationsBank only if NationsBank notifies the Borrower of the terms of the offer contained therein not later than 9:45 a.m. Charlotte, North Carolina time on the Quotation Date. Subject to Articles IV, V and IX hereof, any Competitive Bid Quote so made amounts shall be irrevocable except with rounded to integral multiples of US $1,000,000 in a manner which shall be in the consent sole and absolute discretion of the Administrative Agent given on the instructions of the US Borrower.
(de) Each Promptly on each date US Borrower accepts a Competitive Bid, US Agent shall notify each Lender whether or not its Competitive Bid Quote shall be substantially has been accepted (and if so, in what amount and at what Competitive Bid Rate) by facsimile transmission sent by US Agent, and each successful bidder will thereupon become bound, subject to the form of Exhibit J attached hereto and incorporated herein by reference and shall specify:
(i) the proposed date of borrowing and the Interest Periods other applicable conditions hereof, to all or each portion thereof;
(ii) the principal amount of make the Competitive Bid Loan for in respect of which its Competitive Bid has been accepted. After completing the notifications referred to in the immediately preceding sentence, US Agent shall notify each such offer is being made, which principal amount shall be at least $1,000,000 (or in integral multiples Lender of $100,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans for Bids accepted. Each Lender which is to make a Lender submits Competitive Bid Quotes may not exceed Loan shall, before 11:00 a.m., Dallas, Texas time, on the principal amount of borrowing date specified in the Competitive Bid Borrowing for a particular Interest Period for which offers were requested;
(iii) Request applicable thereto, make available to US Agent in immediately available funds the rate of interest offered for each such Competitive Bid Loan; and
(iv) 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. 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 Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote.
(e) The Administrative Agent shall 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), notify the Borrower in writing by facsimile of the terms of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.03(c) hereof. The Administrative Agent's notice to the Borrower shall specify (i) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (ii) the respective principal amount and interest rate so offered by each Lender (identifying the Lender that made each Competitive Bid Quote). As promptly as possible, the Administrative Agent shall forward to the Borrower copies of each Competitive Bid Quote submitted Loan to be made by such Lender, and US Agent shall promptly deposit such funds to an account designated by US Borrower. As soon as practicable thereafter, US Agent shall notify each Lender of the Administrative Agentaggregate amount of Competitive Bid Loans advanced, the respective Competitive Bid Interest Periods thereof and Competitive Bid Rate applicable thereto.
(f) Not later than 11:00 a.m. CharlotteThe obligation of US Borrower to repay to each Lender the aggregate amount of all Competitive Bid Loans made by such Lender, North Carolina together with interest accruing in connection therewith, shall be evidenced by promissory notes (respectively, such Lender's "Competitive Bid Note") made by US Borrower payable to the order of such Lender in the form of Exhibit L, with appropriate insertions. The amount of principal owing on any Lender's Competitive Bid Note at any given time shall be the aggregate amount of all Competitive Bid Loans theretofore made by such Lender thereunder minus all payments of principal theretofore received by such Lender thereon. Interest on each Competitive Bid Note shall accrue and be due and payable as provided herein and therein. US Borrower shall repay 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), the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance final day of the Competitive Bid Quotes so notified to it pursuant to Section 2.03(e) hereof (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. 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 a Competitive Bid Quote for the entire principal amount of the Competitive Bid Loan so offered or any portion thereof. The Borrower's acceptance of Competitive Bid Quotes is further subject to the following conditions:
(i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth Loan (such date being that specified by US Borrower for repayment of such Competitive Bid Loan in the related Competitive Bid Quote Request;
(iiRequest and such date being no later than six months after the date of the Competitive Bid Loan) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or in integral multiples of $100,000 in excess thereof) but shall not cause the limits specified in Section 2.03(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes may be made only in ascending order of interest rates beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Quotes where the Administrative Agent has correctly advised the Borrower that such Competitive Bid Quote fails to comply with Section 2.03(d) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.03(a) hereof).
(g) If Competitive Bid Quotes are made by two or more Lenders with the same Absolute Rate or Index Rate, as applicable, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are permitted to be accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Index Rates, as applicable, offered by any Lender for such related Interest Period, 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 or in integral multiples of $100,000 in excess thereof) in proportion to the aggregate then unpaid principal amount of such Competitive Bid QuotesLoan. Determinations by Subject to Section 1.6 and the payment of amounts described in Section 3.6, US Borrower shall have the right to prepay any principal amount of the amounts of any Competitive Bid Loans and the lowest bid as provided in Section 2.03(f)(iii) hereof shall be conclusive in the absence of manifest errorLoan.
(hg) Any Lender whose offer to make any No Competitive Bid Loan has been accepted shall, not later than 1:00 p.m. Charlotte, North Carolina time on shall be made within five Business Days after the date specified for the making of such any other Competitive Bid Loan, make the amount of such Loan available unless US Borrower and US Agent shall mutually agree otherwise. If US Agent shall at any time elect to the Administrative Agent at the Principal Office in Dollars and in immediately available funds, for account of the Borrower. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an account specified by the Borrower.
(i) The parties hereto agree that each Competitive Bid Loan (as defined in the Prior Credit Agreement) advanced by a Lender under the Prior Credit Agreement and described on Schedule 2.03(i) hereto shall be deemed to be as of the Closing Date submit a Competitive Bid Loan hereunder and evidenced by in its capacity as a Lender, it shall submit such Lender's bid directly to US Borrower requesting such Competitive Bid Noteone quarter of an hour earlier than the latest time at which the other Lenders are required to submit their bids to US Agent.
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