Purchase Commitment In addition to the commercially reasonable efforts commitment described herein, Distributor hereby agrees to purchase from CryoCath ("Purchase Commitment") and for each renewal year term thereafter, the dollar value in Products set forth on the Purchase Commitment, Exhibit C. Distributor must meet the annual Purchase Commitments at the end of each twelve-month term and must meet 40% of the first term's commitment by the end of the first 9 months of that first term and 40% of the second term's commitment by the end of the first nine months of the second term (hereafter referred to as the "Interim Term Targets"). It is understood that the initial period referred to with respect to the interim and annual purchase commitments will be for 15 months and will commence as of January 1, 2005. Subsequent periods will be for twelve months commencing on April 1, 2006 and April 1 each year thereafter. CryoCath shall transfer to Distributor as of January 1, 2005 all its existing customer accounts it has in the Territory identified in Section 1.2.. Distributor shall pay a one time compensation fee to CryoCath for the transferred accounts on January 1, 2005 an amount equal to ** Throughout the term of this Agreement, if Distributor fails to purchase Distributor's Purchase Commitment at any time or meet the Interim Term Targets, Distributor's appointment may at CryoCath's option, be terminated or may automatically become non-exclusive for the remaining term of this Agreement subject to a 30-day cure period, without prejudice to CryoCath's other rights under this Agreement (including the right to terminate this Agreement upon written notice to Distributor) and CryoCath may appoint one or more additional agents or Distributors for sale of the Products or solicit orders for the Products directly in the Territory for the remaining term of this Agreement. Products returned to CryoCath for reason other than Product defect shall not count towards the fulfillment of Distributor's relevant Purchase Commitment. Purchase Commitments for the second twelve-month period are to be negotiated mutually between the parties 6 months prior to the expiration of the First Twelve Month Period such that ** Purchase Commitments will be adjusted as new jurisdictions are added during the term of this agreement. Throughout the term of this Agreement, if Distributor fails at any time to purchase Distributor's Purchase Commitment or meet the Interim Term Targets, Distributor's appointment may at CryoCath's option, automatically become non-exclusive for the remaining term of this Agreement subject to a 30-day cure period, without prejudice to CryoCath's other rights under this Agreement (including the right to terminate this Agreement upon written notice to Agent) and CryoCath may appoint one or more additional agents or Distributors for sale of the Products or solicit orders for the Products directly in the Territory for the remaining term of this Agreement. Products returned to CryoCath for reason other than Product defect shall not count towards the fulfillment of Distributor's relevant Purchase Commitment. The Purchase Commitment in year two of the term of this Agreement will be established by Manufacturer in consultation with Distributor after the third Contract Quarter and will be confirmed in writing by the Manufacturer prior to the commencement of year 2 and similarly for each renewal period thereafter.
Purchase Commitments Company has no purchase commitments for inventory items or supplies that, together with amounts on hand, constitute in excess of three months normal usage, or which are at an excessive price.
Loan Commitment Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of the Company herein set forth, the Lender hereby agrees to lend to the Company on the Closing Date and thereafter up to $16,000,000 in the aggregate (the "Loan") consisting of $8,000,000 of 7-year Tranche advances and $8,000,000 of 10-year Tranche advances. The Lender's commitment to make the Loan to the Company pursuant to this Section 2.1 is herein called the "Loan Commitment."
Term Loan Commitment As to each Term Loan Lender, the amount equal to such Term Loan Lender’s Term Loan Commitment Percentage of the aggregate principal amount of the Term Loans from time to time outstanding to the Borrower.
Revolving Loan Commitment Each Lender with a Revolving Loan Commitment agrees to make loans on a revolving basis (“Revolving Loans”) from time to time until the Termination Date in such Lender’s Pro Rata Share of such aggregate amounts as the Company may request from all Lenders; provided that the Revolving Outstandings will not at any time exceed Revolving Loan Availability.
Term Commitment Subject to the terms and conditions hereof and in reliance upon the representations and warranties set forth herein, (i) the Fronting Bank severally agrees, to the extent, in each case, that the Administrative Agent has received corresponding payments from other Lenders pursuant to clause (ii) below, to make available to the Borrower up to seven (7) advances of term loans in Dollars ("Delayed-Draw Term Loans") from time to time from the Closing Date until the Delayed-Draw Term Loan Commitment Termination Date and (ii) each Lender severally agrees, for the benefit of the Borrower, to purchase from the Fronting Bank such Lender's Delayed-Draw Term Loan Commitment Percentage of each such Delayed-Draw Term Loan advanced by the Fronting Bank; provided, however, that (i) the aggregate principal amount of all Delayed-Draw Term Loans shall not exceed SEVENTY-FIVE MILLION DOLLARS ($75,000,000) (as such aggregate maximum amount may be reduced from time to time as provided in Section 3.4, the "Delayed-Draw Term Loan Committed Amount") and (ii) with regard to each Lender individually, such Lender shall not be required to purchase outstanding Delayed-Draw Term Loans in an aggregate amount exceeding such Lender's Delayed-Draw Term Loan Commitment Percentage of the Delayed-Draw Term Loan Committed Amount. Delayed-Draw Term Loans may consist of Base Rate Loans or Eurodollar Loans, or a combination thereof, as the Borrower may request (subject to the terms of this Section 2.3); provided, however, that no more than ten (10) Eurodollar Loans which are Delayed-Draw Term Loans shall be outstanding hereunder at any time (it being understood that, for purposes hereof, Eurodollar Loans with different Interest Periods shall be considered as separate Eurodollar Loans, even if they begin on the same date, although borrowings, extensions and conversions may, in accordance with the provisions hereof, be combined at the end of existing Interest Periods to constitute a new Eurodollar Loan with a single Interest Period). Amounts repaid or prepaid on the Delayed-Draw Term Loans may not be reborrowed.
The Commitment Subject to the terms and conditions of this Agreement, Lender agrees to make term loans to Borrower from time to time from the Closing Date and to, but not including, the Termination Date in an aggregate principal amount not exceeding the Commitment. The Commitment is not a revolving credit commitment, and Borrower does not have the right to repay and reborrow hereunder. Each Loan requested by Borrower to be made on a single Business Day shall be for a minimum principal amount set forth in the Supplement, except to the extent the remaining Commitment is a lesser amount.
Revolving Commitment Subject to the terms and conditions hereof and in reliance upon the representations and warranties set forth herein, each Lender severally agrees to make available to the Borrower such Lender's Revolving Commitment Percentage of revolving credit loans requested by the Borrower in Dollars ("REVOLVING LOANS") from time to time from the Closing Date until the Maturity Date, or such earlier date as the Revolving Commitments shall have been terminated as provided herein; PROVIDED, HOWEVER, that the sum of the aggregate outstanding principal amount of Revolving Loans shall not exceed ONE HUNDRED MILLION DOLLARS ($100,000,000) (as such aggregate maximum amount may be reduced from time to time as provided in Section 3.4, the "REVOLVING COMMITTED AMOUNT"); PROVIDED, FURTHER, (A) with regard to each Lender individually, such Lender's outstanding Revolving Loans shall not exceed such Lender's Revolving Commitment Percentage of the Revolving Committed Amount, and (B) the sum of the aggregate outstanding principal amount of Revolving Loans PLUS LOC Obligations PLUS Swingline Loans shall not exceed the Revolving Committed Amount. The initial advance of the Revolving Loans on the Closing Date shall consist solely of Base Rate Loans. Thereafter, Revolving Loans may consist of Base Rate Loans or Eurodollar Loans, or a combination thereof, as the Borrower may request; PROVIDED, HOWEVER, that no more than 15 Eurodollar Loans shall be outstanding hereunder at any time (it being understood that, for purposes hereof, Eurodollar Loans with different Interest Periods shall be considered as separate Eurodollar Loans, even if they begin on the same date, although borrowings, extensions and conversions may, in accordance with the provisions hereof, be combined at the end of existing Interest Periods to constitute a new Eurodollar Loan with a single Interest Period). Revolving Loans hereunder may be repaid and reborrowed in accordance with the provisions hereof.
Swing Loan Commitment (a) Subject to the terms and conditions set forth in this Agreement, Swing Loan Lender agrees to lend to the Borrower (the “Swing Loans”), and the Borrower may borrow (and repay and reborrow) in Dollars only, from time to time between the Closing Date and the date which is five (5) Business Days prior to the Revolving Credit Maturity Date upon notice by the Borrower to the Swing Loan Lender given in accordance with this §2.5, such sums as are requested by the Borrower for the purposes set forth in §2.9 in an aggregate principal amount at any one time outstanding not exceeding the Swing Loan Commitment; provided that in all events (i) no Default or Event of Default shall have occurred and be continuing; (ii) the Dollar Equivalent of the Outstanding U.S. Dollar Revolving Credit Loans, Outstanding Swing Loans (after giving effect to all amounts requested), Outstanding Bid Loans and Letter of Credit Liabilities shall not at any time exceed the Total U.S. Dollar Revolving Credit Commitment; and (iii) the Dollar Equivalent of the Outstanding Revolving Credit Loans (including the Alternative Currency/Dollar Revolving Credit Loans), Outstanding Term Loans, Outstanding Swing Loans (after giving effect to all amounts requested), Outstanding Bid Loans and Letter of Credit Liabilities, shall not at any time exceed the lesser of (A) the Total Commitment, or (B) the Unencumbered Asset Pool Availability. Swing Loans shall constitute “Revolving Credit Loans” for all purposes hereunder and whenever any calculation under this Agreement requires adding Outstanding Revolving Credit Loans and Outstanding Swing Loans, such calculation shall be made without duplication. Notwithstanding anything to the contrary contained in this §2.5, the Swing Loan Lender shall not be obligated to make any Swing Loan at a time when any other U.S. Dollar Revolving Credit Lender is a Defaulting Lender, unless the Swing Loan Lender is satisfied that the participation therein will otherwise be fully allocated to the U.S. Dollar Revolving Credit Lenders that are Non-Defaulting Lenders consistent with §2.14(c) and the Defaulting Lender shall not participate therein, except to the extent the Swing Loan Lender has entered into arrangements with the Borrower or such Defaulting Lender that are satisfactory to the Swing Loan Lender in its good faith determination to eliminate the Swing Loan Lender’s Fronting Exposure with respect to any such Defaulting Lender, including the delivery of cash collateral. The funding of a Swing Loan hereunder shall constitute a representation and warranty by the Borrower that all of the conditions set forth in §10 and §11 have been satisfied on the date of such funding. The Swing Loan Lender may assume that the conditions in §10 and §11 have been satisfied unless Swing Loan Lender has received written notice from a U.S. Dollar Revolving Credit Lender that such conditions have not been satisfied. Each Swing Loan shall be due and payable within five (5) Business Days of the date such Swing Loan was provided and the Borrower hereby agrees (to the extent not repaid as contemplated by §2.5(d) below) to repay each Swing Loan on or before the date that is five (5) Business Days from the date such Swing Loan was provided.
(b) The Swing Loans shall be evidenced by a separate promissory note of the Borrower in substantially the form of Exhibit A-2 hereto (the “Swing Loan Note”), dated the date of this Agreement and completed with appropriate insertions (except as provided in §2.11). The Swing Loan Note shall be payable to the order of the Swing Loan Lender in the principal face amount equal to the Swing Loan Commitment and shall be payable as set forth below. The Borrower irrevocably authorizes the Swing Loan Lender to make or cause to be made, at or about the time of the Drawdown Date of any Swing Loan or at the time of receipt of any payment of principal thereof, an appropriate notation on the Swing Loan Lender’s Record reflecting the making of such Swing Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Swing Loans set forth on the Swing Loan Lender’s Record shall be prima facie evidence of the principal amount thereof owing and unpaid to the Swing Loan Lender, but the failure to record, or any error in so recording, any such amount on the Swing Loan Lender’s Record shall not limit or otherwise affect the obligations of the Borrower hereunder or under the Swing Loan Note to make payments of principal of or interest on any Swing Loan Note when due.
(c) The Borrower shall request a Swing Loan by delivering to the Swing Loan Lender a Loan Request executed by an Authorized Officer no later than 11:00 a.m. (Cleveland time) on the requested Drawdown Date specifying the amount of the requested Swing Loan (which shall be in the minimum amount of $1,000,000.00) and providing the wire instructions for the delivery of the Swing Loan proceeds. The Loan Request shall also contain the statements and certifications required by §2.7(i) and (ii). Each such Loan Request shall be irrevocable and binding on the Borrower and shall obligate the Borrower to accept such Swing Loan on the Drawdown Date. Notwithstanding anything herein to the contrary, a Swing Loan shall be a Base Rate Loan and shall bear interest at the greater of (i) the Federal Funds Effective Rate, or (ii) the Base Rate plus, in each case, the Revolving Credit Applicable Margin for Base Rate Loans. The proceeds of the Swing Loan will be disbursed by wire by the Swing Loan Lender to the Borrower no later than 1:00 p.m. (Cleveland time).
(d) The Swing Loan Lender shall, within two (2) Business Days after the Drawdown Date with respect to such Swing Loan, request each U.S. Dollar Revolving Credit Lender, including the Swing Loan Lender, to make a U.S. Dollar Revolving Credit Loan pursuant to §2.1 in an amount equal to such U.S. Dollar Revolving Credit Lender’s U.S. Dollar Revolving Credit Commitment Percentage of the amount of the Swing Loan outstanding on the date such notice is given. In the event that the Borrower does not notify the Agent in writing otherwise on or before noon (Cleveland Time) of the second (2nd) Business Day after the Drawdown Date with respect to such Swing Loan, Agent shall notify the U.S. Dollar Revolving Credit Lenders that such U.S. Dollar Revolving Credit Loan shall be a Revolving Credit LIBOR Rate Loan with an Interest Period of one (1) month, provided that the making of such Revolving Credit LIBOR Rate Loan will not be in contravention of any other provision of this Agreement, or if the making of a Revolving Credit LIBOR Rate Loan would be in contravention of this Agreement, then such notice shall indicate that such loan shall be a Revolving Credit Base Rate Loan. The Borrower hereby irrevocably authorizes and directs the Swing Loan Lender to so act on its behalf, and agrees that any amount advanced to the Agent for the benefit of the Swing Loan Lender pursuant to this §2.5(d) shall be considered a U.S. Dollar Revolving Credit Loan pursuant to §2.1. Unless any of the events described in paragraph (h), (i) or (j) of §12.1 shall have occurred (in which event the procedures of §2.5(e) shall apply), each U.S. Dollar Revolving Credit Lender shall make the proceeds of its U.S. Dollar Revolving Credit Loan available to the Swing Loan Lender for the account of the Swing Loan Lender at the Agent’s Head Office prior to 12:00 noon (Cleveland time) in funds immediately available no later than the third (3rd) Business Day after the date such notice is given just as if the U.S. Dollar Revolving Credit Lenders were funding directly to the Borrower, so that thereafter such Obligations shall be evidenced by the Revolving Credit Notes (U.S. Dollar). The proceeds of such U.S. Dollar Revolving Credit Loan shall be immediately applied to repay the Swing Loans.
(e) If for any reason a Swing Loan cannot be refinanced by a U.S. Dollar Revolving Credit Loan pursuant to §2.5(d), each U.S. Dollar Revolving Credit Lender will, on the date such U.S. Dollar Revolving Credit Loan pursuant to §2.5(d) was to have been made, purchase an undivided participation interest in the Swing Loan in an amount equal to its U.S. Dollar Revolving Credit Commitment Percentage of such Swing Loan. Each U.S. Dollar Revolving Credit Lender will immediately transfer to the Swing Loan Lender in immediately available funds the amount of its participation and upon receipt thereof the Swing Loan Lender will deliver to such U.S. Dollar Revolving Credit Lender a Swing Loan participation certificate dated the date of receipt of such funds and in such amount.
(f) Whenever at any time after the Swing Loan Lender has received from any U.S. Dollar Revolving Credit Lender such U.S. Dollar Revolving Credit Lender’s participation interest in a Swing Loan, the Swing Loan Lender receives any payment on account thereof, the Swing Loan Lender will distribute to such U.S. Dollar Revolving Credit Lender its participation interest in such amount (appropriately adjusted in the case of interest payments to reflect the period of time during which such U.S. Dollar Revolving Credit Lender’s participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Loan Lender is required to be returned, such U.S. Dollar Revolving Credit Lender will return to the Swing Loan Lender any portion thereof previously distributed by the Swing Loan Lender to it.
(g) Each U.S. Dollar Revolving Credit Lender’s obligation to fund a U.S. Dollar Revolving Credit Loan as provided in §2.5(d) or to purchase participation interests pursuant to §2.5(e) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such U.S. Dollar Revolving Credit Lender or the Borrower or Guarantors may have against the Swing Loan Lender, the Borrower or Guarantors or anyone else for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or Guarantors or any of their respective Subsidiaries; (iv) any breach of this Agreement or any of the other Loan Documents by the Borrower, Guarantors or any Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. Any portions of a Swing Loan not so purchased or converted may be treated by the Agent and Swing Loan Lender as against such U.S. Dollar Revolving Credit Lender as a U.S. Dollar Revolving Credit Loan which was not funded by the non-purchasing U.S. Dollar Revolving Credit Lender as contemplated by §2.8 and §12.5, and shall have such rights and remedies against such U.S. Dollar Revolving Credit Lender as are set forth in this Agreement. Each Swing Loan, once so sold or converted, shall cease to be a Swing Loan for the purposes of this Agreement, but shall be a U.S. Dollar Revolving Credit Loan made by each U.S. Dollar Revolving Credit Lender under its U.S. Dollar Revolving Credit Commitment.
Term Loan Commitments Subject to the terms and conditions hereof, and relying upon the representations and warranties herein set forth, each Lender severally agrees to make a term loan (the “Term Loan”) to the Borrower on the Closing Date in such principal amount as the Borrower shall request up to, but not exceeding such Lender’s Term Loan Commitment.
