Loan and Terms of Payment. For value received, Borrower promises to pay to the order of Bank such amount, as provided for below, together with interest, as provided for below. 2.1 Upon the request of Borrower, made at any time and from time to time during the term hereof, and so long as no Event of Default has occurred, Bank shall lend to Borrower an amount equal to the Borrowing Base; provided, however, that the Daily Balance shall not exceed the lesser of either the Credit Limit or the Borrowing Base, minus (i) all Letter of Credit Obligations and (ii) all obligations under the Special Sublimit (as defined below). If at any time for any reason, the amount of Indebtedness owed by Borrower to Bank pursuant to this Section 2.1 and Section 2.3 of this Agreement is greater than the aggregate amount available to be drawn under this Section 2.1, Borrower shall immediately pay to Bank, in cash, the amount of such excess. 2.2 Except as hereinbelow provided, the Credit shall bear interest, on the Daily Balance owing, at a fluctuating rate of interest equal to the Base Rate plus one half of one (0.50%) percentage points per annum. All interest chargeable under this Agreement that is based upon a per annum calculation shall be computed on the basis of a three hundred sixty (360) day year for actual days elapsed. The Base Rate as of the date of this Agreement is four and three fourths (4.75%) per annum. In the event that the Base Rate announced is, from time to time hereafter, changed, adjustment in the Base Rate shall be made and based on the Base Rate in effect on the date of such change. The Base Rate, as adjusted, shall apply to the Credit until the Base Rate is adjusted again. All interest payable by Borrower under the Credit shall be due and payable on the first day of each calendar month during the term of this Agreement. A late payment charge equal to five percent (5%) of each late payment may be charged on any payment not received by Bank within ten (10) calendar days after the payment due date, but acceptance of payment of this LOAN & SECURITY AGREEMENT (ACCOUNTS AND INVENTORY) charge shall not waive any Event of Default under this Agreement. Upon the occurrence of an Event of Default hereunder, and without constituting a waiver of any such Event of Default, then during the continuation thereof, at Bank's option, the Credit shall bear interest, on the Daily Balance owing, at a rate equal to three percent (3%) per year in excess of the rate applicable immediately prior to the occurrence of the Event of Default, and such rate of interest shall fluctuate thereafter from time to time at the same time and in the same amount as any fluctuation in the rate of interest applicable immediately prior to any such occurrence. 2.3 Subject to the terms and conditions of this Agreement, Bank agrees to issue or cause to be issued letters of credit for the account of Borrower during the term of this Agreement in the aggregate outstanding face amount not to exceed (i) the lesser of the Credit Limit or the Borrowing Base, minus (ii) the then outstanding Daily Balance, provided that the Letter of Credit Obligations shall not in any case exceed Five Hundred Thousand Dollars ($ 500,000). All letters of credit shall be, in form and substance, acceptable to Bank in its sole discretion and shall be subject to the terms and conditions of Bank's form of standard Letter of Credit Application and Agreement. The obligation of Borrower to immediately reimburse Bank for drawings made under letters of credit shall be absolute, unconditional and irrevocable in accordance with the terms of this Agreement and the Letter of Credit Application and Agreement with respect to each such letter of credit. Borrower shall indemnify, defend, protect and hold Bank harmless from any loss, cost, expense, or liability, including, without limitation, reasonable attorney's fees incurred by Bank, whether in-house or outside counsel is used, arising out of or in connection with any letters of credit. 2.4 Subject to the terms and conditions of this Agreement, Bank agrees to advance to Borrower an amount not to exceed One Million Two Hundred Thousand Dollars ($1,200,000) (the "Special Sublimit"). The amount available under the Special Sublimit shall be reduced by Three Hundred Thousand Dollars ($300,000) on each anniversary of this Agreement.
Appears in 1 contract
Loan and Terms of Payment. For value received, Borrower promises to pay to the order of Bank such amount, as provided for below, together with interest, as provided for below.
2.1 Upon the request of Borrower, made at any time and from time to time during the term hereof, and so long as no Event of Default has occurred, Bank shall lend to Borrower an amount equal to the Borrowing Base; provided, however, that in no event shall Bank be obligated to make advances to Borrower under this Section 2.1 whenever the Daily Balance exceeds, at any time, either the Borrowing Base or the sum of Three Million Dollars and No Cents ($3,000,000.00), such amount being referred to herein as an "Overadvance."
2.2 As a sub-facility under the Revolving Loan, Bank shall issue for the benefit of Borrower (a) one or more irrevocable standby letters of credit (each a "Standby L/C", and collectively the "Standby L/Cs"), under which the aggregate of all amounts available to be drawn and all unpaid reimbursement obligations shall not exceed $500,000, it being understood that in no event shall the lesser sum of either (i) the Credit Limit or face amount of all outstanding letters of credit plus (ii) the amount of all outstanding letter of credit reimbursement obligations plus (iii) the outstanding Revolving Loan advances exceed the Borrowing Base. All Standby L/Cs shall be drawn on such terms and conditions as are acceptable to Bank, minus (i) all Letter shall have an expiry date not later than 365 days after the date of Credit Obligations issuance thereof, and (ii) all obligations under shall be governed by the Special Sublimit (as defined below)terms of Bank's standard form letter of credit applications and reimbursement agreements for commercial and standby letters of credit, respectively, which applications and reimbursement agreements Borrower hereby covenants and agrees to execute and deliver to Bank. If at any time for any reason, Bank shall be entitled to receive a fee of 2.0% of the amount of Indebtedness owed by Borrower to Bank pursuant to this Section 2.1 and Section 2.3 of this Agreement is greater than the aggregate maximum amount available to be drawn under on each Standby L/C it issues pursuant to this Section 2.1, Borrower shall immediately pay to Bank, in cash, the amount of such excess2.2.
2.2 2.3 Except as hereinbelow provided, the Credit shall bear interest, on the Daily Balance owing, at a fluctuating rate of interest equal to one (1.00) percentage point per annum above the Base Rate plus one half (the "Rate"). The Credit shall bear interest, from and after the occurrence of one an Event of Default and without constituting a waiver of any such Event of Default, on the Daily Balance owing, at a rate three (0.50%3) percentage points per annumannum above the Rate. All interest chargeable under this Agreement that is based upon a per annum calculation shall be computed on the basis of a three hundred sixty (360) day year for actual days elapsed. The Base Rate as of the date of this Agreement is four eight and three fourths one-half percent (4.758.500%) per annum. In the event that the Base Rate announced is, from time to time hereafter, hereafter changed, adjustment in the Base Rate shall be made and based on the Base Rate in effect on the date of such change. The Base Rate, as adjusted, shall apply to the Credit until the Base Rate is adjusted again. The minimum interest payable by the Borrower under this Agreement shall in no event be less than $500.00 per month. All interest payable by Borrower under the Credit shall be due and payable on the first day of each calendar month during the term of this Agreement. A late payment charge equal to five percent (5%) of each late payment may be charged on any payment not received by Agreement and Bank within ten (10) calendar days after the payment due date, but acceptance of payment of this LOAN & SECURITY AGREEMENT (ACCOUNTS AND INVENTORY) charge shall not waive any Event of Default under this Agreement. Upon the occurrence of an Event of Default hereunder, and without constituting a waiver of any such Event of Default, then during the continuation thereofmay, at Bank's its option, elect to treat such interest and any and all Bank Expenses as advances under the Credit, which amounts shall thereupon constitute Obligations and shall thereafter accrue interest at the rate applicable to the Credit under the terms of the Agreement.
2.4 Without affecting Borrower's obligation to repay immediately any Overadvance in accordance with Section 2.1 hereof, all Overadvances shall bear interest, additional interest on the Daily Balance owing, amount thereof at a rate equal to three percent (3%3.00) percentage points per year month in excess of the rate applicable immediately prior to Rate set forth in Section 2.3, from the occurrence of the Event of Defaultdate incurred and for each month thereafter, and such rate of interest shall fluctuate thereafter from time to time at the same time and until repaid in the same amount as any fluctuation in the rate of interest applicable immediately prior to any such occurrencefull.
2.3 Subject to the terms and conditions of this Agreement, Bank agrees to issue or cause to be issued letters of credit for the account of Borrower during the term of this Agreement in the aggregate outstanding face amount not to exceed (i) the lesser of the Credit Limit or the Borrowing Base, minus (ii) the then outstanding Daily Balance, provided that the Letter of Credit Obligations shall not in any case exceed Five Hundred Thousand Dollars ($ 500,000). All letters of credit shall be, in form and substance, acceptable to Bank in its sole discretion and shall be subject to the terms and conditions of Bank's form of standard Letter of Credit Application and Agreement. The obligation of Borrower to immediately reimburse Bank for drawings made under letters of credit shall be absolute, unconditional and irrevocable in accordance with the terms of this Agreement and the Letter of Credit Application and Agreement with respect to each such letter of credit. Borrower shall indemnify, defend, protect and hold Bank harmless from any loss, cost, expense, or liability, including, without limitation, reasonable attorney's fees incurred by Bank, whether in-house or outside counsel is used, arising out of or in connection with any letters of credit.
2.4 Subject to the terms and conditions of this Agreement, Bank agrees to advance to Borrower an amount not to exceed One Million Two Hundred Thousand Dollars ($1,200,000) (the "Special Sublimit"). The amount available under the Special Sublimit shall be reduced by Three Hundred Thousand Dollars ($300,000) on each anniversary of this Agreement.
Appears in 1 contract
Samples: Revolving Credit Loan & Security Agreement (Hansen Natural Corp)
Loan and Terms of Payment. For value received, Borrower promises to pay to the order of Bank Lender such amount, as provided for below, together with interest, as provided for below.
2.1 Upon the request of Borrower, made at any time and from time to time during the term hereof, and so long as no Event of Default has occurred, Bank Lender shall lend to Borrower at Borrower's request an amount equal up to the Borrowing Base; Credit Limit, provided, however, that the Daily Balance draws in excess of an aggregate $200,000 outstanding shall not exceed the lesser of either the Credit Limit or the Borrowing Base, minus (i) all Letter of Credit Obligations and (ii) all obligations under the Special Sublimit (as defined below)be subject to Lender's approval. If at any time for any reason, the amount of Indebtedness owed by Borrower to Bank Lender pursuant to this Section 2.1 and Section 2.3 of this Agreement is greater than the aggregate amount available to be drawn under this Section 2.1, Borrower shall immediately pay to BankLender, in cash, the amount of such excess.
2.2 Except as hereinbelow providedprovided below, the outstanding Credit shall bear interest, on the Daily Balance owing, at a fluctuating rate of interest equal to the Base Rate plus one half of one seven (0.507%) percentage points percent per annum. All interest chargeable under this Agreement that is based upon a per annum calculation shall be computed on the basis of a three hundred sixty sixty-five (360365) day year for actual days elapsed. The Base Rate as of the date of this Agreement is four and three fourths (4.75%) per annum. In the event that the Base Rate announced is, from time to time hereafter, changed, adjustment in the Base Rate shall be made and based on the Base Rate in effect on the date of such change. The Base Rate, as adjusted, shall apply to the Credit until the Base Rate is adjusted again. All interest payable by Borrower under the Credit shall be due and payable on the first day of each calendar month during the term of this Agreement. A late payment charge equal to five percent (5%) of each late payment may be charged on any payment not received by Bank Lender within ten (10) calendar days after the payment due date, but acceptance of payment of this LOAN & SECURITY AGREEMENT (ACCOUNTS AND INVENTORY) charge shall not waive any Event of Default under this Agreement. Upon the occurrence of an Event of Default hereunder, and without constituting a waiver of any such Event of Default, then during the continuation thereof, at BankLender's option, the Credit shall bear interest, on the Daily Balance owing, at a rate equal to three percent (3%) per year in excess of the rate applicable immediately prior to the occurrence of the Event of Default, and such rate until the Event of interest shall fluctuate thereafter from time to time at the same time and in the same amount as any fluctuation in the rate of interest applicable immediately prior to any such occurrenceDefault is cured.
2.3 Subject to Upon the terms and conditions execution of this the Original Loan Agreement, Bank agrees Borrower paid to issue or cause to be issued letters Lender a loan fee consisting of credit for the account of Borrower during the term of this Agreement in the aggregate outstanding face amount not to exceed (i) the lesser of the Credit Limit or the Borrowing Base, minus $10,000 and (ii) the then outstanding Daily Balance, provided that the Letter a warrant to purchase up to 140,000 shares of Credit Obligations shall not in any case exceed Five Hundred Thousand Dollars ($ 500,000). All letters of credit shall be, in form and substance, acceptable to Bank in its sole discretion and shall be subject to the terms and conditions of BankATI's form of standard Letter of Credit Application and Agreement. The obligation of Borrower to immediately reimburse Bank for drawings made under letters of credit shall be absolute, unconditional and irrevocable in accordance with the terms of this Agreement and the Letter of Credit Application and Agreement with respect to each such letter of credit. Borrower shall indemnify, defend, protect and hold Bank harmless from any loss, cost, expense, or liability, including, without limitation, reasonable attorney's fees incurred by Bank, whether in-house or outside counsel is used, arising out of or in connection with any letters of credit.
2.4 Subject to the terms and conditions of this Agreement, Bank agrees to advance to Borrower an amount not to exceed One Million Two Hundred Thousand Dollars ($1,200,000) Common Stock (the "Special SublimitLender Warrant"). The amount available under Lender Warrant shall vest as follows: the Special Sublimit right to purchase 20,000 shares shall vest immediately upon issuance of the Lender Warrant, and the right to purchase an additional 10,000 shares shall vest each month thereafter on the monthly anniversary of the Lender Warrant issue date as long as some portion of the Credit remains outstanding, up to a total of 140,000 shares. The exercise price per share shall be reduced by Three Hundred Thousand Dollars ($300,000) on 0.50 for one half of each anniversary vested group and $1.00 for the other half of this Agreementeach vested group, and the term of the Lender Warrant shall be five years following the issuance date. The Lender Warrant shall be in the form of Exhibit "B" attached hereto.
Appears in 1 contract
Loan and Terms of Payment. For value received, Borrower promises to pay to the order of Bank Lender such amount, as provided for below, together with interest, as provided for below.
2.1 Upon the request of Borrower, made at any time and from time to time during the term hereof, and so long as no Event of Default has occurred, Bank Lender shall lend to Borrower at Borrower’s request an amount equal up to the Borrowing Base; Credit Limit, provided, however, that the Daily Balance draws in excess of an aggregate $200,000 outstanding shall not exceed the lesser of either the Credit Limit or the Borrowing Base, minus (i) all Letter of Credit Obligations and (ii) all obligations under the Special Sublimit (as defined below)be subject to Lender’s approval. If at any time for any reason, the amount of Indebtedness owed by Borrower to Bank Lender pursuant to this Section 2.1 and Section 2.3 of this Agreement is greater than the aggregate amount available to be drawn under this Section 2.1, Borrower shall immediately pay to BankLender, in cash, the amount of such excess.
2.2 Except as hereinbelow providedprovided below, the outstanding Credit shall bear interest, on the Daily Balance owing, at a fluctuating rate of interest equal to the Base Rate plus one half of one seven (0.507%) percentage points percent per annum. All interest chargeable under this Agreement that is based upon a per annum calculation shall be computed on the basis of a three hundred sixty sixty-five (360365) day year for actual days elapsed. The Base Rate as of the date of this Agreement is four and three fourths (4.75%) per annum. In the event that the Base Rate announced is, from time to time hereafter, changed, adjustment in the Base Rate shall be made and based on the Base Rate in effect on the date of such change. The Base Rate, as adjusted, shall apply to the Credit until the Base Rate is adjusted again. All interest payable by Borrower under the Credit shall be due and payable on the first day of each calendar month during the term of this Agreement. A late payment charge equal to five percent (5%) of each late payment may be charged on any payment not received by Bank Lender within ten (10) calendar days after the payment due date, but acceptance of payment of this LOAN & SECURITY AGREEMENT (ACCOUNTS AND INVENTORY) charge shall not waive any Event of Default under this Agreement. Upon the occurrence of an Event of Default hereunder, and without constituting a waiver of any such Event of Default, then during the continuation thereof, at BankLender's option, the Credit shall bear interest, on the Daily Balance owing, at a rate equal to three percent (3%) per year in excess of the rate applicable immediately prior to the occurrence of the Event of Default, and such rate until the Event of interest shall fluctuate thereafter from time to time at the same time and in the same amount as any fluctuation in the rate of interest applicable immediately prior to any such occurrenceDefault is cured.
2.3 Subject Upon the execution hereof, Borrower shall pay to Lender a loan fee consisting of (i) $10,000 and (ii) a warrant to purchase up to 140,000 shares of ATI’s Common Stock (the terms “Lender Warrant”). The Lender Warrant shall vest as follows: the right to purchase 20,000 shares shall vest immediately upon issuance of the Lender Warrant, and conditions the right to purchase an additional 10,000 shares shall vest each month thereafter on the monthly anniversary of this Agreementthe Lender Warrant issue date as long as some portion of the Credit remains outstanding, Bank agrees up to issue or cause to a total of 140,000 shares. The exercise price per share shall be issued letters $0.50 for one half of credit each vested group and $1.00 for the account other half of Borrower during each vested group, and the term of this Agreement the Lender Warrant shall be five years following the issuance date. The Lender Warrant shall be in the aggregate outstanding face amount not to exceed (i) the lesser of the Credit Limit or the Borrowing Base, minus (ii) the then outstanding Daily Balance, provided that the Letter of Credit Obligations shall not in any case exceed Five Hundred Thousand Dollars ($ 500,000). All letters of credit shall be, in form and substance, acceptable to Bank in its sole discretion and shall be subject to the terms and conditions of Bank's form of standard Letter of Credit Application and Agreement. The obligation of Borrower to immediately reimburse Bank for drawings made under letters of credit shall be absolute, unconditional and irrevocable in accordance with the terms of this Agreement and the Letter of Credit Application and Agreement with respect to each such letter of credit. Borrower shall indemnify, defend, protect and hold Bank harmless from any loss, cost, expense, or liability, including, without limitation, reasonable attorney's fees incurred by Bank, whether in-house or outside counsel is used, arising out of or in connection with any letters of creditExhibit “B” attached hereto.
2.4 Subject to the terms and conditions of this Agreement, Bank agrees to advance to Borrower an amount not to exceed One Million Two Hundred Thousand Dollars ($1,200,000) (the "Special Sublimit"). The amount available under the Special Sublimit shall be reduced by Three Hundred Thousand Dollars ($300,000) on each anniversary of this Agreement.
Appears in 1 contract
Loan and Terms of Payment. For value received, Borrower promises to pay to the order of Bank such amount, as provided for belowthe entire Credit, together with interest, as provided for below.
2.1 Upon the request of Borrower, made at any time and from time to time during prior to the term hereofMaturity Date, and so long as no Event of Default has occurredoccurred and is continuing, Bank shall lend make credit available to Borrower an amount equal to the Borrowing Basehereunder; provided, however, that the Daily Balance shall not exceed the lesser of either the Credit Limit or the Borrowing BaseLimit, minus (i) all Letter of Credit Obligations and (ii) all obligations under the Special Sublimit (as defined below)Obligations. If at any time for any reason, the amount of Indebtedness owed by Borrower to Bank pursuant to this Section 2.1 and Section 2.3 of this Agreement is greater than the aggregate amount available to be drawn under this Section 2.1, Borrower shall immediately pay to Bank, in cash, the amount of such excess. The outstanding principal amount of all loans made under this Section 2.1, together with all accrued and unpaid interest thereon, shall in any event be due and payable in full on the earlier of the Maturity Date or the termination of this Agreement.
2.2 Except as hereinbelow provided, the Credit shall bear interest, on the Daily Balance owing, at a fluctuating rate of in accordance with the LIBOR Addendum. Accrued and unpaid interest equal to on the Base Rate plus one half of one (0.50%) percentage points per annum. All interest chargeable under this Agreement that is based upon a per annum calculation Indebtedness shall be computed on payable in accordance with the basis of a three hundred sixty (360) day year for actual days elapsed. The Base Rate as of the date of this Agreement is four and three fourths (4.75%) per annum. In the event that the Base Rate announced is, from time to time hereafter, changed, adjustment in the Base Rate shall be made and based on the Base Rate in effect on the date of such change. The Base Rate, as adjusted, shall apply to the Credit until the Base Rate is adjusted again. All interest payable by Borrower under the Credit shall be due and payable on the first day of each calendar month during the term of this Agreement. A late payment charge equal to five percent (5%) of each late payment may be charged on any payment not received by Bank within ten (10) calendar days after the payment due date, but acceptance of payment of this LOAN & SECURITY AGREEMENT (ACCOUNTS AND INVENTORY) charge shall not waive any Event of Default under this Agreement. Upon the occurrence of an Event of Default hereunder, and without constituting a waiver of any such Event of Default, then during the continuation thereof, at Bank's option, the Credit shall bear interest, on the Daily Balance owing, at a rate equal to three percent (3%) per year in excess of the rate applicable immediately prior to the occurrence of the Event of Default, and such rate of interest shall fluctuate thereafter from time to time at the same time and in the same amount as any fluctuation in the rate of interest applicable immediately prior to any such occurrenceLIBOR Addendum.
2.3 Subject to the terms and conditions of this Agreement, upon the request of Borrower, made at any time and from time to time prior to the Maturity Date, and so long as no Event of Default has occurred and is continuing, Bank agrees to issue or cause to be issued letters of credit for the account of Borrower during the term of this Agreement in the aggregate outstanding face amount not to exceed (i) the lesser of the Credit Limit or the Borrowing BaseLimit, minus (ii) the then outstanding Daily Balance, provided that the Letter of Credit Obligations shall not in any case exceed Five Hundred Thousand One Million and 00/100 Dollars ($ 500,000$1,000,000.00). All letters of credit shall be, in form and substance, acceptable to Bank in its sole discretion and shall be subject to the terms and conditions of Bank's form of standard Letter of Credit Application and Agreement. .
a. The obligation of Borrower to immediately reimburse Bank for drawings made under letters of credit shall be absolute, unconditional and irrevocable in accordance with the terms of this Agreement and the Letter of Credit Application and Agreement with respect to each such letter of credit. In the absence of such reimbursement, the amount so advanced immediately and automatically shall be deemed to be an advance under Section 2.1 of this Agreement and, thereafter, shall bear interest at the rate then applicable to advances under Section 2.2 hereof.
b. Unless agreed to in writing by Bank, no letter of credit shall have an expiration date that is later than the Maturity Date.
c. Borrower shall indemnify, defend, protect and hold Bank harmless from any loss, cost, expense, or liability, including, without limitation, reasonable attorney's fees incurred by Bank, whether in-house or outside counsel is used, arising out of or in connection with any letters of credit.
2.4 Subject Bank and Borrower agree that any other loans which Bank in its sole discretion has made or may now or hereafter make to Borrower (sometimes hereinafter collectively referred to as the "Loans") shall be subject to the terms and conditions of this Agreement unless otherwise agreed to in writing by Bank and Borrower. In the event there are contradictions between the provisions of this Agreement and any other written agreement with the Bank, this Agreement shall prevail. The Loans shall be subject to the terms and conditions of this Agreement, Bank agrees to advance to Borrower an amount not to exceed One Million Two Hundred Thousand Dollars the LIBOR Addendum, any promissory note(s) executed in connection therewith and/or previously or subsequently executed, and all amendments, renewals and extensions thereof ($1,200,000) (singularly or collectively, the "Special SublimitNotes"), and all those certain security agreements and/or such other security or other documents as Bank has required or may now or hereafter require in connection with the Loans (collectively, the "Loan Documents"). The amount available under the Special Sublimit All such Loan(s) shall be reduced included in the Indebtedness.
a. This Agreement supplements the terms and conditions of the other Loan Documents. Except as otherwise defined herein, all terms used in this Agreement shall have the same meaning as given in the LIBOR Addendum and/or the other Loan Documents which are incorporated herein by Three Hundred Thousand Dollars ($300,000) this reference.
b. The principal and interest on the Loans shall be payable on the terms set forth in the Notes and/or the other Loan Documents entered into in connection therewith. Except as specifically modified hereby, all of the terms and conditions of the Notes and/or the other Loan Documents shall remain in full force and effect.
2.5 Borrower shall pay to Bank:
a. all Bank Expenses, as and when they are invoiced to Borrower, and
b. an unused commitment fee of 0.25% for the Credit on the average Daily Balance by which the Credit Limit exceeds the outstanding amount of Credit, payable quarterly in arrears, with the first quarterly payment on April 1, 2009 and thereafter on each anniversary July 1, October 1, January 1 and April 1 of this Agreementeach year. Such unused commitment fee shall be computed on the basis of a year of 360 days, and shall be assessed for the actual number of days elapsed.
Appears in 1 contract
Loan and Terms of Payment. For value received, Borrower promises to pay to the order of Bank such amount, amount as provided for below, together with interest, as provided for below.
2.1 Upon the request of Borrower, made at any time and from time to time during the term hereof, and so long as no Event of Default has occurred, Bank shall lend to Borrower an amount equal to the Borrowing BaseBase (each a "Revolving Loan," and collectively, the "Revolving Loans"); provided, however, that the Daily Balance shall not exceed the lesser of either the Credit Limit or the Borrowing Base, minus (i) all Letter of Credit Obligations and (ii) all obligations under the Special Sublimit (as defined below)Obligations. If at any time for any reason, the amount of Indebtedness indebtedness owed by Borrower to Bank pursuant to this Section 2.1 and Section 2.3 2.2 of this Agreement is greater than the aggregate amount available to be drawn under this Section 2.1, Borrower shall immediately pay to Bank, in cash, the amount of such excess. Any commitment of Bank, pursuant to the terms of this Agreement, to make Revolving Loans to Borrower shall expire on the Maturity Date, subject to Bank's right to renew said commitment in its sole and absolute discretion at Borrower's request. Any such renewal of said commitment shall not be binding upon Bank unless it is in writing and signed by an officer of Bank. Provided that no Event of Default has occurred and is continuing, all or any portion of the Revolving Loans which are repaid by Borrower shall be available for reborrowing in accordance with the LIBOR Addendum (as hereinafter defined) and the terms hereof. Borrower promises to pay to Bank the entire outstanding unpaid principal balance (and all accrued unpaid interest thereon) of the Revolving Loans on the Maturity Date.
2.2 Subject to the terms and conditions of this Agreement, and so long as no Event of Default has occurred, Bank agrees to issue or cause to be issued letters of credit for the account of Borrower during the term of this Agreement in the aggregate outstanding face amount not to exceed (i) the lesser of the Credit Limit or the Borrowing Base, minus (ii) the then outstanding Daily Balance, provided that the Letter of Credit Obligations shall not in any case exceed Three Million and No/100 Dollars ($3,000,000.00). All letters of credit shall be in form and substance, acceptable to Bank in its sole discretion and shall be subject to the terms and conditions of Bank's form of standard Letter of Credit Application and Agreement. All Letter of Credit Obligations issued under this Agreement shall expire on or before the Maturity Date. The obligation of Borrower to Immediately reimburse Bank for drawings made under letters of credit shall be absolute, unconditional and irrevocable in accordance with the terms of this Agreement and the Letter of Credit Application and Agreement with respect to each such letter of credit. Borrower shall indemnify, defend, protect and hold Bank harmless from any loss, cost. expense, or liability, including, without limitation, reasonable attorney's fees incurred by Bank, whether in-house or outside counsel is used, arising out of or in connection with any letters of credit.
2.3 Subject to the terms and conditions of this Agreement, and so long as no Event of Default has occurred (including, without limitation, any Event of Default that would occur as of such date under the minimum Cash Flow Coverage Ratio set forth in Section 6.16.d of this Agreement), if on any anniversary date of this Agreement Bank shall decline to extend the Maturity Date by one (1) additional year, then Bank shall make available to Borrower a term loan (the "Term Loan") in the amount of up to Five Million and No/100 Dollars ($5,000,000.00), the proceeds of which shall be used only for the repayment of the outstanding principal balance of the Revolving Loans; provided, however, that upon the making of the Term Loan hereunder, the amount of the Credit Limit shall be permanently reduced by the amount of the Term Loan. If, following any election by Bank to decline to extend the Maturity Date on any anniversary date hereof Borrower shall not elect to request the Term Loan on or before the Maturity Date, then Bank's commitment to make the Term Loan shall expire on the Maturity Date. The principal amount of the Term Loan, together with accrued interest thereon, shall be payable on the last day of each month, beginning on the last day of the first calendar month immediately following the making of the Term Loan, in monthly principal payments in an amount sufficient to amortize the principal balance of the Term Loan over the amortization period of forty-eight (48) months. The interest rate, payment terms, maturity date and certain other terms of the Term Loan shall be contained in a promissory note dated the date of the making of the Term Loan, as such may be amended or replaced from time to time, but which shall be substantially in the form attached hereto me Exhibit 2.3.
2.4 Except as hereinbelow providedprovided or as otherwise provided in any promissory note entered into with respect to any portion of the Indebtedness, the Credit shall bear interest, interest on the Daily Balance owing, at a fluctuating rate of interest equal to the Base Rate plus one half of one Zero (0.50%-0-%) percentage points per annum, or at the rate applicable thereto in accordance with the LIBOR Addendum to this Agreement, attached hereto and Incorporated herein by this reference. All interest chargeable under this Agreement that is based upon a per annum calculation shall be computed on the basis of a three hundred sixty (360) day year for actual days elapsed. The Base Rate as of the date of this Agreement is four and three fourths (quarters ( 4.75%% ) per annum. In , in the event that the Base Bass Rate announced is, from time to time hereafter, changed, adjustment in the Base Rate shall be made and based on the Base Rate in effect on the date of such change. The Base Rate, as adjusted, shall apply to the Credit until the Base Rate is adjusted again. All interest payable by Borrower under the Credit shall be due and payable on the first day of each calendar month during the term of this Agreement. A late payment charge equal to five percent (5%) of each late payment may be charged on any payment not received by Bank within ten (10) calendar days after the payment due date, but acceptance of payment of this LOAN & SECURITY AGREEMENT (ACCOUNTS AND INVENTORY) charge shall not waive any Event of Default under this Agreement. Upon the occurrence of an Event of Default hereunder, and without constituting a waiver of any such Event of Default, then during the continuation thereof, at Bank's option, the Credit shall bear interest, on the Daily Balance owing, owing at a rate equal to three percent (3%) per year in excess of the rate applicable immediately prior to the occurrence of the Event of Default, and such rate of interest shall fluctuate thereafter from time to time at the same time and in the same amount as any fluctuation in the rate of interest applicable immediately prior to any such occurrence.
2.3 Subject 2.5 To the extent that any Indebtedness, loans or other obligations made or incurred by Bank to or on behalf of Borrower prior to the terms and conditions of this Agreement, Bank agrees to issue or cause to be issued letters of credit for the account of Borrower during the term date of this Agreement remain outstanding on the date hereof or if any obligation by Bank to make additional loans or otherwise extend financing to Borrower, exists or remains in effect on the aggregate outstanding face amount not date hereof, all such Indebtedness, loans or obligations, and any such commitments to exceed (i) the lesser of the Credit Limit make loans or the Borrowing Base, minus (ii) the then outstanding Daily Balance, provided that the Letter of Credit Obligations shall not in any case exceed Five Hundred Thousand Dollars ($ 500,000). All letters of credit shall be, in form and substance, acceptable to Bank in its sole discretion and extend financing shall be subject to the terms and conditions of this Agreement and the interest rate, payments of principal and Interest and other the terms contained in any note(s) evidencing any such prior loan(s) shall remain in full force and effect, and Borrower hereby ratifies and reaffirms the continuing effectiveness of any such prior note(s) and agrees to continue to make payments in accordance with the terms thereof.
2.6 In addition to any other amounts due or to become due under this Agreement, Borrower shall pay to Bank the following fees:
a. In connection with the financial accommodations provided under this Agreement, on the date hereof, and on each anniversary date hereof, an annual commitment fee in an amount equal to one half percent (0.50% ) of the Credit Limit, which shall be fully earned and non-refundable on the date of payment thereof.
b. In connection with the financial accommodations provided under this Agreement, an annual unused commitment fee in an amount equal to one quarter percent (0.25%) per annum on the unused portion of the Credit Limit available under Section 2.1 hereof, minus the then outstanding amount of all Letter of Credit Obligations under Section 2.2 hereof, which shall be due and payable in arrears on the test day of each calendar quarter during the effectiveness of this agreement, and which shall be fully earned and non-refundable on the date of payment thereof.
c. In addition to all Bank's form customary charges, commissions, fees and costs payable to Bank in connection with the letters of standard credit in accordance with Letter of Credit Application and Agreement. The obligation , Borrower shall pay Bank a fee equal to one and one quarter percentage points (1.25%) per annum, computed on the basis of Borrower to immediately reimburse Bank a three hundred sixty (360) day year for drawings made under letters actual days elapsed, of credit shall be absolute, unconditional and irrevocable in accordance with the terms aggregate amount of this Agreement and the all Letter of Credit Application and Agreement obligations outstanding hereunder; provided, however, that the forgoing fee shall be reduced to one percentage point (1.00%) per annum with respect to each such letter all Letter of credit. Borrower shall indemnify, defend, protect and hold Bank harmless from Credit Obligations secured in full by Cash Collateral.
d. In addition to any loss, cost, expenseother amounts due, or liabilityto become due, includingconcurrently with the execution hereof, without limitation, reasonable attorney's fees Borrower agrees to pay to Bank a legal documentation fee in the amount of Five Thousand Two Hundred Fifty and No/100 Dollars ($5,250) and all other coats and expenses incurred by Bank, whether in-house or outside counsel is used, arising out of or Bank in connection with any letters of credit.
2.4 Subject to the terms and conditions preparation of this Agreement, the other documents, instruments and agreements entered into in connection herewith, and the perfection of any security interest granted to Bank agrees to advance to Borrower an amount not to exceed One Million Two Hundred Thousand Dollars ($1,200,000) (the "Special Sublimit"). The amount available under the Special Sublimit shall be reduced by Three Hundred Thousand Dollars ($300,000) on each anniversary of this AgreementBorrower.
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Loan and Terms of Payment. For value received, Borrower promises to pay to the order of Bank such amount, as provided for below, together with interest, as provided for below.
2.1 Upon the request of Borrower, made at any time and from time to time during the term hereof, and so long as no Event of Default has occurred, Bank shall lend to Borrower an amount equal to the Borrowing Base; provided, however, that the Daily Balance shall not exceed the lesser of either the Credit Limit or the Borrowing Base, minus (i) all Letter of Credit Obligations and (ii) all obligations under the Special Sublimit (as defined below)Obligations. If at any time for any reason, the amount of Indebtedness owed by Borrower to Bank pursuant to this Section 2.1 and Section 2.3 of this Agreement is greater than the aggregate amount available to be drawn under this Section 2.1, Borrower shall immediately pay to Bank, in cash, the amount of such excess.
2.2 Except as hereinbelow provided, the Credit shall bear interest, on the Daily Balance owing, at a fluctuating rate of interest equal as specified in the LIBOR Addendum to the Base Rate plus one half of one (0.50%) percentage points per annumAmended and Restated Loan and Security Agreement. All interest chargeable under this Agreement that is based upon a per annum calculation shall be computed on the basis of a three hundred sixty (360) day year for actual days elapsed. The Base Rate as of the date of this Agreement is four Eight and three fourths One Quarter percent (4.758.25 %) per annum. In the event that the Base Rate announced is, from time to time hereafter, changed, adjustment in the Base Rate shall be made and based on the Base Rate in effect on the date of such change. The Base Rate, as adjusted, shall apply to the Credit until the Base Rate is adjusted again. All interest payable by Borrower under the Credit shall be due and payable on the first day of each calendar month during the term of this Agreement. A late payment charge equal to five percent (5%) of each late payment may be charged on any payment not received by Bank within ten (10) calendar days after the payment due date, but acceptance of payment of this LOAN & SECURITY AGREEMENT (ACCOUNTS AND INVENTORY) charge shall not waive any Event of Default under this Agreement. Upon the occurrence of an Event of Default hereunder, and without constituting a waiver of any such Event of Default, then during the continuation thereof, at Bank's ’s option, the Credit shall bear interest, on the Daily Balance owing, at a rate equal to three percent (3%) per year in excess of the rate applicable immediately prior to the occurrence of the Event of Default, and such rate of interest shall fluctuate thereafter from time to time at the same time and in the same amount as any fluctuation in the rate of interest applicable immediately prior to any such occurrence.
2.3 Subject to the terms and conditions of this Agreement, upon the request of Borrower, made at any time and from time to time during the term hereof, and so long as no Event of Default has occurred, Bank agrees to issue or cause to be issued letters of credit for the account of Borrower during the term of this Agreement in the aggregate outstanding face amount not to exceed (i) the lesser of the Credit Limit or the Borrowing Base, minus (ii) the then outstanding Daily Balance, provided that the Letter of Credit Obligations shall not in any case exceed Five Hundred Thousand One Million Dollars ($ 500,000$1,000,000). All letters of credit shall be, in form and substance, acceptable to Bank in its sole discretion and shall be subject to the terms and conditions of Bank's ’s form of standard Letter of Credit Application and Agreement. The obligation of Borrower to immediately reimburse Bank for drawings made under letters of credit shall be absolute, unconditional and irrevocable in accordance with the terms of this Agreement and the Letter of Credit Application and Agreement with respect to each such letter of credit. Borrower shall indemnify, defend, protect and hold Bank harmless from any loss, cost, expense, or liability, including, without limitation, reasonable attorney's ’s fees incurred by Bank, whether in-house or outside counsel is used, arising out of or in connection with any letters of credit.
2.4 Subject to the terms and conditions of this Agreement, Bank agrees to advance to Borrower an amount not to exceed One Million Two Hundred Thousand Dollars ($1,200,000) (the "Special Sublimit"). The amount available under the Special Sublimit shall be reduced by Three Hundred Thousand Dollars ($300,000) on each anniversary of this Agreement.
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Loan and Terms of Payment. For value received, Borrower promises to pay to the order of Bank such amount, as provided for below, together with interest, as provided for below.
2.1 Upon the request of Borrower, made at any time and from time to time during the term hereof, and so long as no Event of Default has occurred, Bank shall lend to Borrower an amount equal to the Borrowing Base; provided, however, that the Daily Balance shall not exceed the lesser of either the Credit Limit or the Borrowing Base, minus (i) all Letter of Credit Obligations and (ii) all obligations under the Special Sublimit (as defined below)Obligations. If at any time for any reason, the amount of Indebtedness owed by Borrower to Bank pursuant to this Section 2.1 and Section 2.3 of this Agreement is greater than the aggregate amount available to be drawn under this Section 2.1, Borrower shall immediately pay to Bank, in cash, the amount of such excess.
2.2 Except as hereinbelow provided, the Credit shall bear interest, on the Daily Balance owing, at a fluctuating rate of interest equal to the Base Rate plus one half of one 50/100 (0.50%) percentage 0.500%)percentage points per annum. All interest chargeable under this Agreement that is based upon a per annum calculation shall be computed on the basis of a three hundred sixty (360) day year for actual days elapsed. The Base Rate as of the date of this Agreement is four Four and three fourths 25/100 (4.754.250%) per annum. In the event that the Base Rate announced is, from time to time hereafter, changed, adjustment in the Base Rate shall be made and based on the Base Rate in effect on the date of such change. The Base Rate, as adjusted, shall apply to the Credit until the Base Rate is adjusted again. The minimum interest payable by Borrower under this Agreement shall in no event be less than n/a per month. All interest payable by Borrower under the Credit shall be due and payable on the first day of each calendar month during the term of this Agreement. A late payment charge equal to five percent (5%) of each late payment may be charged on any payment not received by Bank within ten (10) calendar days after the payment due date, but acceptance of payment of this LOAN & SECURITY AGREEMENT (ACCOUNTS AND INVENTORY) charge shall not waive any Event of Default under this Agreement. Upon the occurrence of an Event of Default hereunder, and without constituting a waiver of any such Event of Default, then during the continuation thereof, at Bank's option, the Credit shall bear interest, on the Daily Balance owing, at a rate equal to three percent (3%) per year in excess of the rate applicable immediately prior to the occurrence of the Event of Default, and such rate of interest shall fluctuate thereafter from time to time at the same time and in the same amount as any fluctuation in the rate of interest applicable immediately prior to any such occurrence.
2.3 Subject to the terms and conditions of this Agreement, Bank agrees to issue or cause to be issued letters of credit for the account of Borrower during the term of this Agreement in the aggregate outstanding face amount not to exceed (i) the lesser of the Credit Limit or the Borrowing Base, minus (ii) the then outstanding Daily Balance, provided that the Letter of Credit Obligations shall not in any case exceed Five Hundred Thousand N/A Dollars ($ 500,000). N/A) All letters of credit shall be, in form and substance, acceptable to Bank in its sole discretion and shall be subject to the terms and conditions of Bank's form of standard Letter of Credit Application and Agreement. The obligation of Borrower to immediately reimburse Bank for drawings made under letters of credit shall be absolute, unconditional and irrevocable in accordance with the terms of this Agreement and the Letter of Credit Application and Agreement with respect to each such letter of credit. Borrower shall indemnify, defend, protect and hold Bank harmless from any loss, cost, expense, or liability, including, without limitation, reasonable attorney's fees incurred by Bank, whether in-house or outside counsel is used, arising out of or in connection with any letters of credit.
2.4 Subject to the terms and conditions of this Agreement, Bank agrees to advance to Borrower an amount not to exceed One Million Two Hundred Thousand Dollars ($1,200,000) (the "Special Sublimit"). The amount available under the Special Sublimit shall be reduced by Three Hundred Thousand Dollars ($300,000) on each anniversary of this Agreement.
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