Common use of Special Advances Clause in Contracts

Special Advances. (i) Any contrary provision of this Agreement or any other Loan Document notwithstanding, at any time (A) after the occurrence and during the continuance of a Default or an Event of Default, or (B) that any of the other applicable conditions precedent set forth in Section 4 are not satisfied, the Administrative Agent hereby is authorized by the Borrowers and the Lenders, from time to time, in the Administrative Agent’s Permitted Discretion, to make Advances under any Facility to, or for the benefit of, the Appropriate Borrowers on behalf of the Appropriate Lenders, that the Administrative Agent, in its Permitted Discretion, deems necessary or desirable (1) to preserve or protect the Collateral, or any portion thereof, or (2) to enhance the likelihood of repayment of the Finance Obligations (other than the Bank Product Obligations) (the U.S. Advances described in this Section 2.2(e)(i) shall be referred to as “U.S. Protective Advances” and the Canadian Advances described in this Section 2.2(e)(i) shall be referred to as the “Canadian Protective Advances” and together with the U.S. Protective Advances, the “Protective Advances”). (ii) Any contrary provision of this Agreement or any other Loan Document notwithstanding, the Lenders hereby authorize the Administrative Agent or the Swingline Lender, as applicable, and either the Administrative Agent or the Swingline Lender, as applicable, may, but is not obligated to, knowingly and intentionally, continue to make Advances (including Swingline Loans) to the Borrowers notwithstanding that an Overadvance exists or would be created thereby, so long as: (A) after giving effect to such Advances, the aggregate amount of Overadvances outstanding at any time shall not exceed 5% of the Maximum Global Credit Amount, (B) with respect to any such U.S. Advances, after giving effect to such U.S. Advances (1) the outstanding U.S. Usage does not exceed the U.S. Borrowing Base by more than 10% of the U.S. Borrowing Base, (2) the outstanding U.S. Usage (except for and excluding amounts charged to the U.S. Loan Account for interest, fees, or Lender Group Expenses) does not exceed Maximum U.S. Credit Amount, and (3) the outstanding U.S. Special Advances does not exceed 10% of the U.S. Borrowing Base, and (C) with respect to any such Canadian Advances, after giving effect to such Canadian Advances (1) the outstanding Canadian Usage does not exceed the Canadian Borrowing Base by more than 10% of the Canadian Borrowing Base, (2) the outstanding Canadian Usage (except for and excluding amounts charged to the Canadian Loan Account for interest, fees, or Lender Group Expenses) does not exceed Maximum Canadian Credit Amount, and (3) the outstanding Canadian Special Advances does not exceed 10% of the Canadian Borrowing Base. In the event the Administrative Agent obtains actual knowledge that the U.S. Usage, the Canadian Usage, the aggregate outstanding U.S. Special Advances, the aggregate outstanding Canadian Special Advances or aggregate outstanding Overadvances exceeds the amounts permitted by the immediately foregoing provisions, regardless of the amount of, or reason for, such excess, the Administrative Agent shall notify the Lenders as soon as practicable (and prior to making any (or any additional) intentional Overadvances (except for and excluding amounts charged to any Loan Account for interest, fees, or Lender Group Expenses) or Protective Advances (to the extent so limited) unless the Administrative Agent determines that prior notice would result in imminent harm to the Collateral or its value, in which case the Administrative Agent may make such Overadvance (or Protective Advance, as applicable) and provide notice as promptly as practicable thereafter), and the Appropriate Lenders with respect to any such Advance shall, together with the Administrative Agent, jointly determine the terms of arrangements that shall be implemented with the Appropriate Borrowers intended to reduce, within a reasonable time, the outstanding principal amount of the Advances to the Borrowers to an amount permitted by the preceding sentence. In such circumstances, if any Lender objects to the proposed terms of reduction or repayment of any Overadvance, the terms of reduction or repayment thereof shall be implemented according to the determination of the Required Lenders. The foregoing provisions are meant for the benefit of the Lenders and the Administrative Agent and are not meant for the benefit of the Borrowers (it being understood that the Required Lenders may, without the consent of the Borrowers, waive any of the restrictions or limitations in respect of Overadvances set forth in this Section 2.2(e)(ii), which shall continue to be bound by the provisions of Section 2.3(e)). Each Lender under any Facility shall be obligated to settle with the Administrative Agent as provided in Section 2.2(f) (or Section 2.2(h), as applicable) for the amount of such Lender’s Pro Rata Share of any applicable unintentional Overadvances made under such Facility by the Administrative Agent reported to such Lender, any intentional Overadvances made under such Facility as permitted under this Section 2.2(e)(ii), and any Overadvances made under such Facility resulting from the charging to the Appropriate Loan Account of interest, fees, or Lender Group Expenses. (iii) Each U.S. Protective Advance and each U.S. Overadvance (each, a “U.S. Special Advance”) shall be deemed to be a U.S. Advance hereunder and each Canadian Protective Advance and each Canadian Overadvance (each, a “Canadian Special Advance” and together with the U.S. Special Advances, “Special Advances”). No U.S. Special Advance shall be eligible to be a LIBOR Rate Loan and no Canadian Special Advance shall be eligible to be a BA Rate Loan or a LIBOR Rate Loan. Prior to Settlement with respect to any Special Advances, all payments on the Special Advances shall be payable to the Administrative Agent solely for its own account. The Special Advances under any Facility shall be repayable on demand, shall be secured by the Liens of the Administrative Agent under the Loan Documents securing the Finance Obligations under such Facility and, (A) in the case of U.S. Special Advances, shall constitute U.S. Finance Obligations hereunder and bear interest at (x) the U.S. Base Rate if denominated in U.S. Dollars and (y) EURIBOR with an Interest Rate of one month if denominated in Euros, and (B) in the case of Canadian Special Advances, shall constitute Canadian Finance Obligations hereunder and bear interest (x) at the Canadian Prime Rate if denominated in Canadian Dollars and (y) at the Canadian Base Rate if denominated in U.S. Dollars. The provisions of this Section 2.2(e) are for the exclusive benefit of the Administrative Agent, the Swingline Lender, and the Lenders and are not intended to benefit the Borrowers (or any other Loan Party) in any way. Notwithstanding the foregoing, the Required Lenders may revoke the Administrative Agent’s discretion to make, or permit the existence of, any Overadvance (other than an Overadvance resulting from a Protective Advance) upon 10 Business Days’ written notice to the Administrative Agent. Overadvances will not be permitted to be outstanding for more than 45 days from the date made without the consent of the Required Lenders.

Special Advances. (i) Any contrary provision of this Agreement or any other Loan Document notwithstanding, at any time (A) after the occurrence and during the continuance of a Default or an Event of Default, or (B) that any of the other applicable conditions precedent set forth in Section 4 are not satisfied, the Administrative Agent hereby is authorized by the Borrowers and the Lenders, from time to time, in the Administrative Agent’s Permitted Discretion, to make Advances under any Facility to, or for the benefit of, the Appropriate Borrowers on behalf of the Appropriate Lenders, that the Administrative Agent, in its Permitted Discretion, deems necessary or desirable (1) to preserve or protect the Collateral, or any portion thereof, or (2) to enhance the likelihood of repayment of the Finance Obligations (other than the Bank Product Obligations) (the U.S. Advances described in this Section 2.2(e)(i) shall be referred to as “U.S. Protective Advances” and the Canadian Advances described in this Section 2.2(e)(i) shall be referred to as the “Canadian Protective Advances” and together with the U.S. Protective Advances, the “Protective Advances”). (ii) Any contrary provision of this Agreement or any other Loan Document notwithstanding, the Lenders hereby authorize the Administrative Agent or the Swingline Lender, as applicable, and either the Administrative Agent or the Swingline Lender, as applicable, may, but is not obligated to, knowingly and intentionally, continue to make Advances (including Swingline Loans) to the Borrowers notwithstanding that an Overadvance exists or would be created thereby, so long as: (A) after giving effect to such Advances, the aggregate amount of Overadvances outstanding at any time shall not exceed 5% of the Maximum Global Credit Amount, (B) with respect to any such U.S. Advances, after giving effect to such U.S. Advances (1) the outstanding U.S. Usage does not exceed the U.S. Borrowing Base by more than 10% of the U.S. Borrowing Base, (2) the outstanding U.S. Usage (except for and excluding amounts charged to the U.S. Loan Account for interest, fees, or Lender Group Expenses) does not exceed Maximum U.S. Credit Amount, and (3) the outstanding U.S. Special Advances does not exceed 10% of the U.S. Borrowing Base, and (C) with respect to any such Canadian Advances, after giving effect to such Canadian Advances (1) the outstanding Canadian Usage does not exceed the Canadian Borrowing Base by more than 10% of the Canadian Borrowing Base, (2) the outstanding Canadian Usage (except for and excluding amounts charged to the Canadian Loan Account for interest, fees, or Lender Group Expenses) does not exceed Maximum Canadian Credit Amount, and (3) the outstanding Canadian Special Advances does not exceed 10% of the Canadian Borrowing Base. In the event the Administrative Agent obtains actual knowledge that the U.S. Usage, the Canadian Usage, the aggregate outstanding U.S. Special Advances, the aggregate outstanding Canadian Special Advances or aggregate outstanding Overadvances exceeds the amounts permitted by the immediately foregoing provisions, regardless of the amount of, or reason for, such excess, the Administrative Agent shall notify the Lenders as soon as practicable (and prior to making any (or any additional) intentional Overadvances (except for and excluding amounts charged to any Loan Account for interest, fees, or Lender Group Expenses) or Protective Advances (to the extent so limited) unless the Administrative Agent determines that prior notice would result in imminent harm to the Collateral or its value, in which case the Administrative Agent may make such Overadvance (or Protective Advance, as applicable) and provide notice as promptly as practicable thereafter), and the Appropriate Lenders with respect to any such Advance shall, together with the Administrative Agent, jointly determine the terms of arrangements that shall be implemented with the Appropriate Borrowers intended to reduce, within a reasonable time, the outstanding principal amount of the Advances to the Borrowers to an amount permitted by the preceding sentence. In such circumstances, if any Lender objects to the proposed terms of reduction or repayment of any Overadvance, the terms of reduction or repayment thereof shall be implemented according to the determination of the Required Lenders. The foregoing provisions are meant for the benefit of the Lenders and the Administrative Agent and are not meant for the benefit of the Borrowers (it being understood that the Required Lenders may, without the consent of the Borrowers, waive any of the restrictions or limitations in respect of Overadvances set forth in this Section 2.2(e)(ii), which shall continue to be bound by the provisions of Section 2.3(e)). Each Lender under any Facility shall be obligated to settle with the Administrative Agent as provided in Section 2.2(f) (or Section 2.2(h), as applicable) for the amount of such Lender’s Pro Rata Share of any applicable unintentional Overadvances made under such Facility by the Administrative Agent reported to such Lender, any intentional Overadvances made under such Facility as permitted under this Section 2.2(e)(ii), and any Overadvances made under such Facility resulting from the charging to the Appropriate Loan Account of interest, fees, or Lender Group Expenses. (iii) Each U.S. Protective Advance and each U.S. Overadvance (each, a “U.S. Special Advance”) shall be deemed to be a U.S. Advance hereunder and each Canadian Protective Advance and each Canadian Overadvance (each, a “Canadian Special Advance” and together with the U.S. Special Advances, “Special Advances”). No U.S. Special Advance shall be eligible to be a LIBOR Rate Loan and no Canadian Special Advance shall be eligible to be a BA Rate Loan or a LIBOR Rate Loan. Prior to Settlement with respect to any Special Advances, all payments on the Special Advances shall be payable to the Administrative Agent solely for its own account. The Special Advances under any Facility shall be repayable on demand, shall be secured by the Liens of the Administrative Agent under the Loan Documents securing the Finance Obligations under such Facility and, (A) in the case of U.S. Special Advances, shall constitute U.S. Finance Obligations hereunder and bear interest at (x) the U.S. Base Rate if denominated in U.S. Dollars and (y) EURIBOR with an Interest Rate RatePeriod of one month if denominated in Euros, and (B) in the case of Canadian Special Advances, shall constitute Canadian Finance Obligations hereunder and bear interest (x) at the Canadian Prime Rate if denominated in Canadian Dollars and (y) at the Canadian Base Rate if denominated in U.S. Dollars. The provisions of this Section 2.2(e) are for the exclusive benefit of the Administrative Agent, the Swingline Lender, and the Lenders and are not intended to benefit the Borrowers (or any other Loan Party) in any way. Notwithstanding the foregoing, the Required Lenders may revoke the Administrative Agent’s discretion to make, or permit the existence of, any Overadvance (other than an Overadvance resulting from a Protective Advance) upon 10 Business Days’ written notice to the Administrative Agent. Overadvances will not be permitted to be outstanding for more than 45 days from the date made without the consent of the Required Lenders.