THE INDEBTEDNESS: REVOLVING CREDIT. 2.1 Subject to the terms and conditions of this Agreement (including without limitation Section 2.3 hereof), Bank agrees to make Advances to Company at any time and from time to time from the Restatement Date until the Maturity Date, in an aggregate principal amount not to exceed at any one time outstanding the Commitment. All of the Advances under this Section 2 shall be evidenced by the Note under which Advances, repayments and readvances may be made, subject to the terms and conditions of this Agreement. 2.2 The Note shall mature on the Maturity Date and each Advance from time to time outstanding thereunder shall bear interest at its Applicable Interest Rate. The amount and date of each Advance, its Applicable Interest Rate, its Interest Period, if applicable, and the amount and date of any repayment shall be noted on Bank's records, which records will be conclusive evidence thereof absent manifest error. 2.3 Company may request an Advance under this Section 2 upon the delivery to Bank of a Request for Advance executed by an authorized officer of Company, subject to the following: (a) each such Request for Advance shall set forth the information required on the Request for Advance form annexed hereto as Exhibit "C"; (b) each such Request for Advance shall be delivered to Bank by 3:00 p.m. (Detroit time) on the proposed date of Advance with respect to Prime-based Advances, and by 12:00 p.m. (Detroit time) three (3) Business Day prior to the proposed date of Advance with respect to Eurodollar-based Advances; (c) the principal amount of such Advance, plus the amount of any outstanding indebtedness to be then combined therewith having the same Applicable Interest Rate and Interest Period, if any, shall be, in the case of Prime-based Advances at least $100,000 and, in the case of a Eurodollar-based Advance, at least $1,000,000 or any larger amount in $100,000 increments; (d) on the proposed date of such Advance, after giving effect to all Advances requested on that day, the principal amount of such Advance, plus the sum of the amount of all other outstanding Advances under this Section 2, shall not exceed the Commitment; (e) a Request for Advance, once delivered to Bank, shall not be revocable by Company. (f) each Request for Advance shall constitute a certification by Company, as of the date hereof: (i) both before and after such Advance, the obligations of the Loan Parties set forth in this Agreement and the other Loan Documents to which such Persons are parties are valid, binding and enforceable obligations of such Persons; (ii) all conditions to Advances have been satisfied and shall remain satisfied to the date of such Advance (both before and after giving effect to such Advance); (iii) there is no Default or Event of Default in existence, and none will exist upon the making of such Advance (both before and after giving effect to such Advance); (iv) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects and shall be true and correct in all material respects as of the making of such Advance (both before and after giving effect to such Advance), other than any representation or warranty that expressly speaks only as of a different date; and (v) the execution of such Request for Advance will not violate the material terms and conditions of any material contract, agreement or other borrowing of Company. 2.4 Bank may also, at its option, lend under this Section 2 upon the telephone request of an authorized officer of Company and, in the event Bank makes any such advance upon a telephone request, the requesting officer shall fax to Bank, on the same day as such telephone request, a Request for Advance in the form attached as Exhibit "C." Company hereby authorizes Bank to disburse Advances under this Section 2 pursuant to the telephone instructions of any person purporting to be an authorized officer of Company and, notwithstanding any provision of this Agreement to the contrary, Company shall bear all risk of loss resulting from disbursements made upon any telephone request. Each telephone request for an Advance shall constitute a certification of the matters set forth in clause (f) of Section 2.3. Company certifies that Schedule 2.4 lists all Company officers authorized to request Advances by telephone. Only those officers specified on Schedule 2.4 (as amended or supplemented in a writing or writings executed by Company and delivered by Company to Bank in accordance with this Agreement), and no others, are authorized to make such telephone requests. Any Advance made pursuant to such telephone request shall only be deposited by Bank into Company's corporate bank account, Comerica Bank Account Number 1840278004. 2.5 Company may prepay all or part of the outstanding balance of the Prime-based Advance(s) under the Note at any time. Upon three (3) Business Days' prior notice to Bank, Company may prepay all or part of any Eurodollar-based Advance, provided that the amount of any such partial prepayment shall be at least $100,000 and the unpaid portion of such Advance which is refunded or converted under Section 3.3 shall be subject to the limitations of Section 2.3(c) hereof. Any prepayment of a Prime-based Advance or a Eurodollar-based Advance made in accordance with this Section shall be without premium, penalty or prejudice to Company's right to reborrow under the terms of this Agreement subject, in the case of Eurodollar-based Advances, to the provisions of Section 4.1 hereof. 2.6 Proceeds of Advances under the Note shall be used for general corporate purposes, including working capital. (a) Provided that no Default or Event of Default has occurred and is continuing, Company may, upon at least three (3) Business Days' prior written notice to Bank, permanently reduce the Commitment in whole at any time, or in part from time to time, without premium or penalty, provided that each partial reduction of the Commitment shall be in an aggregate amount equal to at least Ten Million Dollars ($10,000,000) or the aggregate remaining principal amount of the Commitment, whichever is less. (b) If the Commitment is reduced under Sections 2.7(a) above, Company must prepay in accordance with the terms hereof the amount, if any, by which the aggregate unpaid principal amount of Advances exceeds the amount of the Commitment, taking into account the aforesaid reductions thereof, together with accrued but unpaid interest on the principal amount of such prepaid Advances to the date of prepayment. If the termination or reduction of the Commitment requires the prepayment of a Eurodollar-based Advance on a day other than the last day of the then current Interest Period applicable to such Advance, so long as no Default or Event of Default has occurred and is continuing, Company, rather than immediately prepaying the Advance, may deposit with the Bank cash collateral acceptable to the Bank in an amount equal to the prepayment and required interest payments (to the end of the then current Interest Payment) to be applied to the Advance at the end of that Interest Period. Reductions of the Commitment will not be available for reinstatement by or readvance to the Company and shall be permanent and irrevocable. If the Company permanently reduces the Commitment to zero and has satisfied all of its obligations under this Agreement, this Agreement shall terminate (except for any provisions which, by their terms, explicitly survive the termination of this Agreement and the payment of obligations hereunder).
Appears in 1 contract
Samples: Credit Agreement (Compuware Corp)
THE INDEBTEDNESS: REVOLVING CREDIT. 2.1 Subject to the terms and conditions of this Agreement (including without limitation Section 2.3 hereof)Agreement, Bank agrees to Lender shall make Advances to Company Annealing at any time and from time to time from the Restatement Date until the Revolving Credit Maturity Date, not to exceed Six Million Dollars ($6,000,000) in an aggregate principal amount not to exceed at any one time outstanding the Commitmentoutstanding. All of the Advances under this Section Article 2 shall be evidenced by the Revolving Credit Note under which Advances, repayments and readvances may be made, subject to the terms and conditions of this Agreement.
2.2 The Revolving Credit Note shall mature on the Revolving Credit Maturity Date Date, and each Advance from time to time outstanding thereunder shall bear interest at its Applicable Interest Ratethe LIBO Rate or as otherwise provided under this Agreement. The amount and date of each Advance, its Applicable Interest Rate, its Interest Period, if applicable, Advance and the amount and date of any repayment shall be noted on Bank's Lender’s records, which records will be conclusive evidence thereof absent manifest demonstrable error.
2.3 Company Annealing may request an Advance under this Section Article 2 upon the delivery to Bank Lender of a Request for Advance executed by an authorized officer of CompanyAnnealing, subject to the following:
(a) each such Request for Advance shall set forth the information required on the Request for Advance form annexed hereto as Exhibit "C"“B”;
(b) each such Request for Advance shall be delivered to Bank Lender by 3:00 p.m. (11:00 a.m. Detroit time) time on the proposed date of Advance with respect to Prime-based Advances, and by 12:00 p.m. (Detroit time) three (3) Business Day prior to the proposed date of Advance with respect to Eurodollar-based Advancesthereof;
(c) the principal amount of such Advance, plus the amount of any outstanding indebtedness to be then combined therewith having the same Applicable Interest Rate and Interest Period, if any, shall be, in the case of Prime-based Advances at least $100,000 and, in the case of a Eurodollar-based Advance, at least $1,000,000 or any larger amount in $100,000 increments;
(d) on the proposed date of such Advance, after giving effect to all Advances requested on that day, the principal amount of such Advance, plus the sum of the amount of all other outstanding Advances under this Section Article 2, shall not exceed the Commitment;formula set forth in Section 2.5 below; and
(ed) a Request for Advance, once delivered to BankLender, shall not be revocable by Company.
(f) each Request for Advance shall constitute a certification by Company, as of the date hereof:
(i) both before and after such Advance, the obligations of the Loan Parties set forth in this Agreement and the other Loan Documents to which such Persons are parties are valid, binding and enforceable obligations of such Persons;
(ii) all conditions to Advances have been satisfied and shall remain satisfied to the date of such Advance (both before and after giving effect to such Advance);
(iii) there is no Default or Event of Default in existence, and none will exist upon the making of such Advance (both before and after giving effect to such Advance);
(iv) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects and shall be true and correct in all material respects as of the making of such Advance (both before and after giving effect to such Advance), other than any representation or warranty that expressly speaks only as of a different date; and
(v) the execution of such Request for Advance will not violate the material terms and conditions of any material contract, agreement or other borrowing of Companyirrevocable.
2.4 Bank may also, at its option, lend under this Section 2 upon the telephone request of an authorized officer of Company and, in the event Bank makes any such advance upon a telephone request, the requesting officer shall fax to Bank, on the same day as such telephone request, a Request for Advance in the form attached as Exhibit "C." Company hereby authorizes Bank to disburse Advances under this Section 2 pursuant to the telephone instructions of any person purporting to be an authorized officer of Company and, notwithstanding any provision of this Agreement to the contrary, Company shall bear all risk of loss resulting from disbursements made upon any telephone request. Each telephone request for an Advance shall constitute a certification of the matters set forth in clause (f) of Section 2.3. Company certifies that Schedule 2.4 lists all Company officers authorized to request Advances by telephone. Only those officers specified on Schedule 2.4 (as amended or supplemented in a writing or writings executed by Company and delivered by Company to Bank in accordance with this Agreement), and no others, are authorized to make such telephone requests. Any Advance made pursuant to such telephone request shall only be deposited by Bank into Company's corporate bank account, Comerica Bank Account Number 1840278004.
2.5 Company Annealing may prepay all or part of the outstanding balance of the Prime-based Advance(s) under the Revolving Credit Note at any timetime without premium or penalty.
2.5 The aggregate principal amount at any one time outstanding under the Revolving Credit Note shall never exceed the Borrowing Base. Upon three (3) Business Days' prior notice Annealing shall immediately make all payments necessary to Bank, Company may prepay all or part of any Eurodollar-based Advance, provided that the amount of any such partial prepayment shall be at least $100,000 and the unpaid portion of such Advance which is refunded or converted under Section 3.3 shall be subject to the limitations of Section 2.3(c) hereof. Any prepayment of a Prime-based Advance or a Eurodollar-based Advance made in accordance comply with this Section shall be without premium, penalty or prejudice to Company's right to reborrow under the terms of this Agreement subject, in the case of Eurodollar-based Advances, to the provisions of Section 4.1 hereofprovision.
2.6 Proceeds of Advances the initial Advance under the Revolving Credit Note shall be used solely for general corporate purposes, including working capitalcapital purposes except that up to $700,000 may be used to fund the Maxco Loan.
(a) Provided that no Default or Event of Default has occurred and is continuing, Company may, upon at least three (3) Business Days' prior written notice 2.7 Annealing agrees to Bank, permanently reduce pay to Lender a commitment fee on the Commitment in whole at any time, or in part from time to time, without premium or penalty, provided that each partial reduction average daily balance of the Commitment unused portion of the Revolving Credit Note at the rate of one-eighth of one percent (1/8%) per annum, computed on the actual number of days elapsed using a year of 360 days. The commitment fee shall be payable quarterly in an aggregate amount equal to at least Ten Million Dollars ($10,000,000) or the aggregate remaining principal amount of the Commitment, whichever is less.
(b) If the Commitment is reduced under Sections 2.7(a) above, Company must prepay in accordance with the terms hereof the amount, if any, by which the aggregate unpaid principal amount of Advances exceeds the amount of the Commitment, taking into account the aforesaid reductions thereof, together with accrued but unpaid interest arrears on the principal amount of such prepaid Advances to the date of prepayment. If the termination or reduction of the Commitment requires the prepayment of a Eurodollar-based Advance on a day other than the last first day of each January, April, July and October, commencing October 1, 2006, and on the then current Interest Period applicable to such AdvanceRevolving Credit Maturity Date, so long as no Default or Event of Default has occurred and is continuing, Company, rather than immediately prepaying the Advance, may deposit with the Bank cash collateral acceptable to the Bank in an amount equal to the prepayment and required interest payments (to the end of the then current Interest Payment) to be applied to the Advance at the end of that Interest Period. Reductions of the Commitment will not be available for reinstatement by or readvance to the Company and shall be permanent and irrevocablenon-refundable. If the Company permanently reduces For purposes of calculating the Commitment Fee, the face amount of all outstanding letters of credit issued by Bank for the account of Annealing shall be deemed to zero and has satisfied all be usage of its obligations under this Agreement, this Agreement shall terminate (except for any provisions which, by their terms, explicitly survive the termination of this Agreement and the payment of obligations hereunder)Revolving Credit Note.
Appears in 1 contract
Samples: Credit Agreement (Maxco Inc)
THE INDEBTEDNESS: REVOLVING CREDIT. 2.1 Subject to the terms Provided no Default or Event of Default shall have occurred and conditions of this Agreement (including without limitation Section 2.3 hereof)be continuing, Bank agrees to make Advances to Company at any time and from time to time from the Restatement Date effective date hereof until the Revolving Credit Maturity Date, not to exceed the Revolving Credit Commitment Amount, in an aggregate principal amount not to exceed at any one time outstanding the Commitmentoutstanding. All of the Advances under this Section 2 shall be evidenced by the Revolving Credit Note under which Advances, repayments and readvances re-Advances may be made, subject to the terms and conditions of this Agreement.
2.2 In addition to direct Advances under the Revolving Credit Note to be provided to Company by Bank under Section 2.1 of this Agreement, so long as no Default or Event of Default has occurred and is continuing, Bank further agrees to issue, or commit to issue, from time to time from the date hereof through the date which is thirty (30) days prior to the Revolving Credit Maturity Date, commercial letters of credit and standby letters of credit for the account of Company (herein individually called a “Letter of Credit” and collectively “Letters of Credit”) in aggregate undrawn amounts not to exceed Seven Million Five Hundred Thousand Dollars ($7,500,000) at any one time outstanding; provided, however, that the sum of the aggregate amount of Advances under the Revolving Credit Note plus the Letter of Credit Reserve shall not exceed the lesser of the Revolving Credit Commitment Amount or the Borrowing Base at any time; and provided further that no Letter of Credit shall, by its terms, have an expiration date which extends beyond the Revolving Credit Maturity Date. In addition to the terms and conditions of this Agreement, the issuance of any Letters of Credit shall also be subject to the terms and conditions of any letter of credit applications and agreements executed and delivered by Company to Bank with respect thereto. With respect to each commercial Letter of Credit, and in addition to Bank’s other applicable standard letter of credit fees, Company shall pay Bank (i) a letter of credit issuance fee equal to the greater of (A) $150.00 or (B) 1/8th percent (0.125%) of the face amount of the Letter of Credit for each ninety (90) day period (or portion thereof) commencing with the date of issuance of such letter of credit and ending on the expiry date of the Letter of Credit and (ii) a negotiation fee equal to the greater of (y) $150.00 or (z) 1/8th percent (0.125%) of the face amount of each presentation for draw made thereunder. The fees under the prior sentence shall be payable upon demand by Bank. With respect to each standby Letter of Credit, and in addition to Bank’s other standard letter of credit fees, Company shall pay Bank annually per annum letter of credit fee equal to the greater of (A) $500.00 or (B) two percent (2%) of the face amount of such Letter of Credit annually in advance.
2.3 Company warrants and agrees that the aggregate, outstanding, direct Advances plus the Letter of Credit Reserve shall never exceed the lesser of (i) the Revolving Credit Commitment Amount and (ii) the Borrowing Base. If the limitations in the prior sentence, are exceeded at any time, Company shall immediately pay Bank sums sufficient to reduce the aggregate, outstanding, direct Advances by the amount of such excess; provided, however, if the limitations in the prior sentence are exceeded solely as a result of any fee or expense charged by Bank as an Advance (if any), such sums sufficient to reduce the aggregate, outstanding, direct Advances by the amount of such excess shall be due one (1) Business Day after demand by Bank.
2.4 The Revolving Credit Note shall mature on the Revolving Credit Maturity Date and each Advance from time to time outstanding thereunder shall bear interest at its Applicable Interest Rate. The amount and date of each Advance, its Applicable Interest Rate, its Interest Period, if applicable, and the amount and date of any repayment shall be noted on Bank's ’s records, which records will be conclusive evidence thereof absent manifest error.
2.3 2.5 Company may request an Advance under this Section 2 upon the delivery to Bank of a Request for Advance executed by an authorized officer of Company, subject to the following:
(a) each such Request for Advance shall set forth the information required on the Request for Advance form annexed hereto as Exhibit "C"“A”;
(b) each such Request for Advance shall be delivered to Bank by 3:00 p.m. 11:00 a.m. (Detroit time) on the proposed date of Advance with respect to Primethe Advance, except in the case of a Request for a Eurodollar-based AdvancesAdvance, and by 12:00 p.m. in which case, one (Detroit time1) three (3) Business Day day prior to the proposed date of Advance with respect to Eurodollar-based AdvancesAdvance;
(c) in the case of a Eurodollar-based Advance, the principal amount of such Advance, plus the amount of any outstanding indebtedness to be then combined therewith having the same Applicable Interest Rate and Interest Period, if any, shall be, in the case of Prime-based Advances be at least $100,000 and, in the case of a Eurodollar-based Advance, at least $1,000,000 2,000,000 or any larger amount in $100,000 1,000,000 increments;
(d) on the proposed date of such Advance, after giving effect to all Advances requested on that day, the principal amount of such Advance, plus the sum of the amount of all other outstanding Advances under this Section 2, shall not exceed the Commitment;
(e) a Request for Advance, once delivered to Bank, shall not not, without Bank’s consent, be revocable by Company.
(f) each Request for Advance shall constitute a certification by Company, as of the date hereof:
(i) both before and after such Advance, the obligations of the Loan Parties set forth in this Agreement and the other Loan Documents to which such Persons are parties are valid, binding and enforceable obligations of such Persons;
(ii) all conditions to Advances have been satisfied and shall remain satisfied to the date of such Advance (both before and after giving effect to such Advance);
(iii) there is no Default or Event of Default in existence, and none will exist upon the making of such Advance (both before and after giving effect to such Advance);
(iv) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects and shall be true and correct in all material respects as of the making of such Advance (both before and after giving effect to such Advance), other than any representation or warranty that expressly speaks only as of a different date; and
(ve) no more than five (5) Interest Periods shall be in effect under the execution Revolving Credit Note at any time. At the option of such Request for Advance will not violate the material terms and conditions of any material contract, agreement or other borrowing of Company.
2.4 Bank may also, at its option, lend under this Section 2 upon the telephone request of an authorized officer of Company andBank, in the event Bank makes any such advance upon a telephone request, the requesting officer shall fax to Bank, on the same day as such telephone request, a Request lieu of written Requests for Advance in the form attached as Exhibit "C." Company hereby authorizes Bank to disburse Advances under this Section 2 pursuant to the telephone instructions of any person purporting to be an authorized officer of Company and, notwithstanding any provision of this Agreement to the contraryAdvances, Company shall bear all risk of loss resulting from disbursements made upon any telephone requestmay utilize Bank’s “Sweep to Loan” automated system for obtaining Prime-based Advances. Each telephone request for time an Advance is made using the “Sweep to Loan” system, it shall constitute a certification certificate by Company of the matters set forth in clause (f) the Request for Advance form as of Section 2.3such date. Company certifies that Schedule 2.4 lists all Company officers authorized Bank may revoke Company’s privilege to request Advances by telephone. Only those officers specified on Schedule 2.4 (as amended or supplemented in a writing or writings executed by Company use the “Sweep to Loan” system at any time and delivered by Company to Bank in accordance with this Agreement)after any such revocation, and no others, are authorized to make such telephone requests. Any Advance made pursuant to such telephone request the regular procedures set forth herein shall only be deposited by Bank into Company's corporate bank account, Comerica Bank Account Number 1840278004apply.
2.5 2.6 Company may prepay all or part of the outstanding balance of the Prime-based Advance(s) Advances under the Revolving Credit Note at any time. Upon three one (31) Business Days' Day prior notice to Bank, Company may prepay all or part of any Eurodollar-based Advance, provided that the amount of any such partial prepayment shall be at least $100,000 and the aggregate unpaid portion of such Advance Advances which is are refunded or converted at any one time under Section 3.3 shall be subject to the limitations of Section 2.3(c2.5(c) hereof. Any prepayment of a Prime-based Advance Advance, or any prepayment of a Eurodollar-based Advance on the last day of the Interest Period therefor made in accordance with this Section Section, shall be without premium, premium or penalty or prejudice to Company's ’s right to reborrow under the terms of this Agreement subjectAgreement. Any other prepayment shall be subject to the provisions of Section 3.1 hereof.
2.7 Proceeds of Advances under the Revolving Credit Note shall be used solely for working capital purposes of Company. Use of the “Sweep to Loan” system shall not in and of itself indicate that Company is using proceeds of the Revolving Credit Note for purposes other than those permitted under this Agreement.
2.8 The aggregate principal amount at any one time outstanding under the Revolving Credit Note plus the aggregate undrawn amount of Letters of Credit (and the unpaid amount of any draws or other demands for payment under any Letters of Credit) shall never exceed the lesser of (i) the Revolving Credit Commitment Amount and (ii) the Borrowing Base. Company shall immediately make all payments necessary to comply with this provision. Any such payments shall be applied first to outstanding Prime-based Advances and the remainder, in if any, to outstanding Eurodollar-based Advances.
2.9 The Revolving Credit Note and the Advances thereunder shall bear interest from the date thereof on the unpaid principal balance thereof from time to time outstanding, at a rate per annum equal to the Prime-based Rate or the Eurodollar-based Rate, as the case may be and as the Company may elect subject to the provisions of this Agreement. With respect to Prime-based Advances, interest shall be payable monthly on the first Business Day of each month, commencing on the first Business Day following the month during which such Advance is made, and at maturity. With respect to Eurodollar-based Advances, to the provisions of Section 4.1 hereof.
2.6 Proceeds of Advances under the Note interest shall be used for general corporate purposespayable on the last day of each Interest Period applicable thereto, including working capital.
(a) Provided that no Default or provided, however, if such Interest Period is longer than three months, interest shall be payable three months following the first day of such Interest Period and on the last day of such Interest Period. Notwithstanding the foregoing, from and after the occurrence of any Event of Default has occurred and is continuingsolely during the continuation thereof, Company maythe Advances shall bear interest, upon payable on demand, at least a rate per annum equal to: (i) in the case of Prime-based Advances, three percent (3%) Business Days' prior written notice to Bank, permanently reduce above the Commitment Prime-based Rate; and (ii) in whole at any time, or in part from time to time, without premium or penalty, provided that each partial reduction of the Commitment shall be in an aggregate amount equal to at least Ten Million Dollars ($10,000,000) or the aggregate remaining principal amount of the Commitment, whichever is less.
(b) If the Commitment is reduced under Sections 2.7(a) above, Company must prepay in accordance with the terms hereof the amount, if any, by which the aggregate unpaid principal amount of Advances exceeds the amount of the Commitment, taking into account the aforesaid reductions thereof, together with accrued but unpaid interest on the principal amount of such prepaid Advances to the date of prepayment. If the termination or reduction of the Commitment requires the prepayment case of a Eurodollar-based Advance, three percent (3%) above the rate which would otherwise be applicable under this Section 2.9 until the end of the then current Interest Period, at which time such Advance shall bear interest at the rate provided for in clause (i) of this Section 2.9. Interest on all Advances shall be calculated on the basis of a 360 day year for the actual number of days elapsed. The interest rate with respect to any Prime-based Advance shall change on the effective date of any change in the Prime-based Rate. 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) days after its due date, but acceptance of payment of this charge shall not waive any Event of Default under this Agreement.
2.10 Each Interest Period for a Eurodollar-based Advance shall commence on the date such Eurodollar-based Advance is made or is converted from an Advance of another type pursuant to Section 2.11 below hereof or on the last day of the immediately preceding Interest Period for such Eurodollar-based Advance, and shall end on the date which is one (1), two (2), three (3) or four (4) months thereafter (or any other date agreed to by Company and Bank), as the Company may elect as set forth below, subject to the following:
(a) no Interest Period shall extend beyond the Revolving Credit Maturity Date; and
(b) any Interest Period which would otherwise end on a day other than which is not a Business Day shall be extended to the next succeeding Business Day unless the next succeeding Business Day falls in another calendar month, in which case, such Interest Period shall end on the immediately preceding Business Day and when an Interest Period begins on a day which has no numerically corresponding day in the calendar month during which such Interest Period is to end, it shall end on the last Business Day of such calendar month. The Company shall elect the initial Interest Period applicable to a Eurodollar-based Advance by its Request for Advance given to the Bank pursuant to Section 2.5 or by its notice of conversion given to the Bank pursuant to Section 2.11, as the case may be. Provided that no Event of Default shall have occurred and be continuing, Company may elect to continue an Advance as a Eurodollar-based Advance by giving irrevocable written, telephonic or telegraphic notice thereof to the Bank, before 11:00 a.m. on the last day of the then current Interest Period applicable to such Eurodollar-based Advance, so long as no Default or Event specifying the duration of Default has occurred the succeeding Interest Period therefor. If the Bank does not receive timely notice of the election and is continuing, the Interest Period elected by the Company, rather than immediately prepaying the Advance, may deposit with the Bank cash collateral acceptable Company shall be deemed to the Bank in an amount equal have elected to the prepayment and required interest payments (convert such Eurodollar-based Advance to a Prime-based Advance at the end of the then current Interest Payment) to Period.
2.11 Provided that no Event of Default shall have occurred and be applied to continuing, the Company may, on any Business Day, convert any outstanding Advance at into an Advance of another type in the end same aggregate principal amount, provided that any conversion of that Interest Period. Reductions a Eurodollar-based Advance shall be made only on the last Business Day of the Commitment will not be available for reinstatement by or readvance then current Interest Period applicable to the Company and shall be permanent and irrevocablesuch Advance. If the Company permanently reduces desires to convert an Advance, it shall give the Bank written, telephonic or telegraphic notice, specifying the date of such conversion, the Advance to be converted, the type of Advance elected and, if the conversion is into a Eurodollar-based Advance, the duration of the first Interest Period therefor, which notice shall be given not later than 11:00 a.m. on the applicable date of conversion.
2.12 Company shall pay Bank a nonrefundable unused fee equal to one quarter of one percent (1/4%) times the average daily unused portion of the Revolving Credit Commitment Amount. The unused fee shall be payable quarterly in arrears commencing on December 1, 2005 and on the first Business Day of each March, June, September and December thereafter and on the Revolving Credit Maturity Date. For purposes of this Section 2.12, the aggregate principal amount of direct Advances outstanding under the Revolving Credit Note as of any date of determination plus the aggregate amount available to zero and has satisfied be drawn under all Letters of its obligations under this Agreement, this Agreement Credit as of such date shall terminate (except for any provisions which, by their terms, explicitly survive be deemed to be the termination used portion of the Revolving Credit Commitment Amount as of such date.
2.13 Company shall pay Bank a non-refundable administrative fee annually in advance commencing on the date of this Agreement and on the same day of each year thereafter. The annual fee due under this Section 2.12 upon execution of this Agreement shall be in the amount of $100,000 and thereafter shall be in the amount of $50,000.
2.14 Bank, in the exercise of its sole but reasonable discretion, may modify the Applicable Percentage from time to time in the event Company’s co-insurance rates with respect to its insured Accounts change. Bank shall furnish Company with written notice of any change in the Applicable Percentage. In the event that Bank, at any time in its sole but reasonable discretion, determines that the dollar amount of Eligible Accounts or Eligible Foreign Accounts collectable by Company is reduced or diluted as a result of discounts or rebates granted by Company to the respective Account Debtor(s), returned or rejected Inventory or services, or such other reasons or factors as Bank deems applicable, Bank may, in its sole discretion, upon five (5) Business Days’ prior written notice to Company, reduce or otherwise modify the percentage of Eligible Accounts included within the Borrowing Base and/or reduce the dollar amount of Company’s Eligible Accounts Eligible Foreign Accounts by an amount determined by Bank in its sole but reasonable discretion.
2.15 Upon at least three (3) Business Days’ prior written notice to the Bank, Company may terminate the Revolving Credit Commitment in whole at any time, without premium or penalty, provided such termination shall be accompanied by (i) payment in full of obligations hereunderthe aggregate principal amount of all outstanding Advances and the unreimbursed amount of any draws under Letters of Credit honored by Bank, interest thereon to the effective date of termination, the unused fee under Section 2.12 of this Agreement, accrued and unpaid to the effective date of termination, the unused fee under Section 2.12 of this Agreement, accrued and unpaid to the effective date of such termination, and all other items of Indebtedness (other than those cash collateralized under the following clause (ii)); and (ii) a deposit by Company with Bank cash collateral in the amount equal to (x) 105% of the maximum amount available to be drawn at any time under any Letter of Credit then outstanding plus (y) the Hedging Exposure as of the date of termination; provided, however that if the termination of the Revolving Credit Commitment requires the prepayment of a Eurodollar-based Advance and such termination or reduction is made on a day other than the last Business Day of the then current Interest Period applicable to such Eurodollar-based Advance, then the Company shall reimburse Bank on demand for any resulting loss, cost or expense incurred by Bank as a result thereof, including, without limitation, any such loss, cost or expense incurred in obtaining, liquidating, employing or redeploying deposits from third parties, in accordance with the provisions of Section 3.1.
Appears in 1 contract
THE INDEBTEDNESS: REVOLVING CREDIT. 2.1 Subject Bank may lend to the terms and conditions of this Agreement (including without limitation Section 2.3 hereof), Bank agrees to make Advances to Company Borrower at any time and from time to time from the Restatement Date effective date hereof until the Maturity Date, earlier to occur of (i) demand or (ii) the occurrence of an Event of Default sums not to exceed under the line of credit Three Million Five Hundred Thousand Dollars ($3,500,000) in an aggregate principal amount not to exceed at any one time outstanding the Commitmentoutstanding. All of the Advances under this Section 2 The borrowings hereunder shall be evidenced by the Revolving Credit Note under which Advancesadvances, repayments and readvances may be made, subject to the terms and conditions of this Agreement; provided, however, in no event shall Bank be obligated to make any advance under this Agreement.
2.2 The Revolving Credit Note shall mature on be payable upon demand, and the Maturity Date and each Advance balance from time to time outstanding thereunder shall bear interest at its Applicable Interest a per annum. rate equal to one percent (1%) above the Bank's Prime Rate. The amount Upon the occurrence of any Event of Default hereunder, interest shall accrue on the unpaid principal balance at the per annum rate of three percent (3%) above the rate otherwise in effect. Interest shall be payable monthly as provided in the Revolving Credit Note. Interest shall be computed on a daily basis using a year of 360 days, assessed for the actual number of days elapsed, and in such computation effect shall be given to any change in the interest rate resulting from a change in the Prime Rate on the date of each Advance, its Applicable Interest such change in the Prime Rate, its Interest Period, if applicable, and the amount and date of any repayment shall be noted on Bank's records, which records will be conclusive evidence thereof absent manifest error.
2.3 Company may request an Advance Bank shall not make any advances under this Section 2 upon the delivery to Revolving Credit Note unless Borrower shall have first filed with Bank of a Request for Advance executed by an authorized officer of CompanyBorrower; provided, subject however, at the option of Bank, in lieu of written Requests for Advances, Borrower may utilize Bank's "Sweep to Loan" automated system for obtaining advances. Each time an advance is made using the following:
(a) each such Request for Advance "Sweep to Loan" system, it shall constitute a certificate by Borrower of the matters set forth the information required on in the Request for Advance form annexed hereto as Exhibit "C";
(b) each such Request for Advance shall be delivered to Bank by 3:00 p.m. (Detroit time) on the proposed date of Advance with respect to Prime-based Advances, and by 12:00 p.m. (Detroit time) three (3) Business Day prior to the proposed date of Advance with respect to Eurodollar-based Advances;
(c) the principal amount of such Advance, plus date. Bank may revoke Borrower's privilege to use the amount of "Sweep to Loan" system at any outstanding indebtedness to be then combined therewith having the same Applicable Interest Rate time and Interest Period, if any, shall be, in the case of Prime-based Advances at least $100,000 and, in the case of a Eurodollar-based Advance, at least $1,000,000 or after any larger amount in $100,000 increments;
(d) on the proposed date of such Advance, after giving effect to all Advances requested on that dayrevocation, the principal amount of such Advance, plus the sum of the amount of all other outstanding Advances under this Section 2, shall not exceed the Commitment;
(e) a Request for Advance, once delivered to Bank, shall not be revocable by Company.
(f) each Request for Advance shall constitute a certification by Company, as of the date hereof:
(i) both before and after such Advance, the obligations of the Loan Parties regular procedures set forth in this Agreement and the other Loan Documents to which such Persons are parties are valid, binding and enforceable obligations of such Persons;
(ii) all conditions to Advances have been satisfied and herein shall remain satisfied to the date of such Advance (both before and after giving effect to such Advance);
(iii) there is no Default or Event of Default in existence, and none will exist upon the making of such Advance (both before and after giving effect to such Advance);
(iv) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects and shall be true and correct in all material respects as of the making of such Advance (both before and after giving effect to such Advance), other than any representation or warranty that expressly speaks only as of a different date; and
(v) the execution of such Request for Advance will not violate the material terms and conditions of any material contract, agreement or other borrowing of Company.
2.4 apply. Bank may alsomay, at its option, lend under this Section 2 the Revolving Credit Note upon the telephone request of an authorized officer of Company Borrower and, in the event Bank makes any such advance upon a telephone request, the requesting officer shall fax mail to Bank, on the same day as such telephone request, a Request for Advance in the form attached as Exhibit "C." Company Advance. Borrower hereby authorizes Bank to disburse Advances advances under this Section 2 the Revolving Credit Note pursuant to the telephone instructions of any person purporting to be an authorized officer of Company and, notwithstanding any provision of this Agreement to the contrary, Company Borrower and Borrower shall bear all risk of loss resulting from disbursements made upon any telephone request. Each telephone request .
2.4 In addition to advances under the Revolving Credit Note to be provided to Borrower by Bank under and pursuant to Section 2.1 of this Agreement, Bank may issue, or commit to issue, from time to time, standby and trade letters of credit for an Advance shall constitute the account of Company (herein individually called a certification "Letter of Credit" and collectively "Letters of Credit") provided, however that the sum of the matters set forth in clause aggregate amount of advances outstanding under the Revolving Credit Note plus the Letter of Credit Reserve shall not exceed Three Million Five Hundred Thousand Dollars (f$3,500,000) at any one time. In addition to the terms and conditions of Section 2.3. Company certifies that Schedule 2.4 lists all Company officers authorized this Agreement, the issuance of any Letters of Credit shall also be subject to request Advances by telephone. Only those officers specified on Schedule 2.4 (as amended or supplemented in a writing or writings the terms and conditions of any letter of credit applications and agreements executed by Company and delivered by Company unto Bank with respect thereto.
2.5 Borrower may prepay the Revolving Credit Note in whole or in part without premium or penalty.
2.6 The aggregate principal amount at any one time outstanding under the Revolving Credit Note and the Letter of Credit Reserve shall never exceed the formula set forth in the Advance Formula Agreement dated August 12, 1998 or in any Advance Formula Agreement delivered by Borrower to Bank in accordance substitution therefor. Borrower shall immediately make all payments necessary to comply with this Agreement), and no others, are authorized to make such telephone requests. Any Advance made pursuant to such telephone request shall only be deposited by Bank into Company's corporate bank account, Comerica Bank Account Number 1840278004provision.
2.5 Company may prepay all or part of the outstanding balance of the Prime-based Advance(s) under the Note at any time. Upon three (3) Business Days' prior notice to Bank, Company may prepay all or part of any Eurodollar-based Advance, provided that the amount of any such partial prepayment shall be at least $100,000 and the unpaid portion of such Advance which is refunded or converted under Section 3.3 shall be subject to the limitations of Section 2.3(c) hereof. Any prepayment of a Prime-based Advance or a Eurodollar-based Advance made in accordance with this Section shall be without premium, penalty or prejudice to Company's right to reborrow under the terms of this Agreement subject, in the case of Eurodollar-based Advances, to the provisions of Section 4.1 hereof.
2.6 Proceeds of 2.7 Advances under the Revolving Credit Note shall be used for general corporate purposesworking capital purposes and, including working capitalsubject to the prior approval of Bank (which approval may be given or withheld in the sole discretion of Bank) for permitted acquisitions.
(a) Provided 2.8 Borrower acknowledges that no Default or Event of Default has occurred the Revolving Credit Note and is continuing, Company may, the Indebtedness under this Section 2 matures upon at least three (3) Business Days' prior written notice to issuance and that the Bank, permanently reduce the Commitment in whole at any time, or in part from time to timewithout notice, and without premium or penalty, provided that each partial reduction of the Commitment shall be in an aggregate amount equal to at least Ten Million Dollars ($10,000,000) or the aggregate remaining principal amount of the Commitment, whichever is less.
(b) If the Commitment is reduced under Sections 2.7(a) above, Company must prepay in accordance with the terms hereof the amount, if any, by which the aggregate unpaid principal amount of Advances exceeds the amount of the Commitment, taking into account the aforesaid reductions thereof, together with accrued but unpaid interest on the principal amount of such prepaid Advances to the date of prepayment. If the termination or reduction of the Commitment requires the prepayment of a Eurodollar-based Advance on a day other than the last day of the then current Interest Period applicable to such Advance, so long as no Default or Event of Default has occurred and is continuing, Company, rather than immediately prepaying the Advancereason, may deposit with demand that the Bank cash collateral acceptable to the Bank in an amount equal to the prepayment and required interest payments (to the end of the then current Interest Payment) to be applied to the Advance at the end of that Interest Period. Reductions of the Commitment will not be available for reinstatement by or readvance to the Company and shall be permanent and irrevocable. If the Company permanently reduces the Commitment to zero and has satisfied all of its obligations under this Agreement, this Agreement shall terminate (except for any provisions which, by their terms, explicitly survive the termination of this Agreement Revolving Credit Note and the payment of obligations hereunder)Indebtedness be immediately repaid in full.
Appears in 1 contract
THE INDEBTEDNESS: REVOLVING CREDIT. 2.1 Subject to the terms and conditions of this Agreement (including without limitation Section 2.3 hereof), Bank agrees to make Advances to Company Manitex at any time and from time to time from the Restatement Date effective date hereof until the Revolving Credit Maturity Date, not to exceed the Revolving Credit Maximum Amount in an aggregate principal amount not to exceed at any one time outstanding the Commitmentoutstanding. All of the Advances under this Section 2 shall be evidenced by the Revolving Credit Note under which Advancesadvances, repayments and readvances may be made, subject to the terms and conditions of this Agreement.
2.2 The Revolving Credit Note shall mature on the Revolving Credit Maturity Date and each Advance from time to time outstanding thereunder shall bear interest at its Applicable Interest Rate. The amount and date of each Advance, its Applicable Interest Rate, its Interest Period, if applicable, and the amount and date of any repayment shall be noted on Bank's ’s records, which records will be conclusive evidence thereof presumed correct absent manifest error.
2.3 Company Manitex may request an Advance under this Section 2 upon the delivery to Bank of a Request for Advance executed by an authorized officer of CompanyManitex , subject to the following:
(a) each such Request for Advance shall set forth the information required on the Request for Advance form annexed attached hereto as Exhibit "C"“B”;
(b) each such Request for Advance shall be delivered to Bank by 3:00 p.m. (Detroit time) 11:00 a.m. on the proposed date of Advance with respect to Prime-based Advances, and by 12:00 p.m. (Detroit time) three (3) Business Day prior to the proposed date of Advance with respect to Eurodollar-based AdvancesAdvance;
(c) the principal amount of such Advance, plus the amount of any outstanding indebtedness to be then combined therewith having the same Applicable Interest Rate and Interest Period, if any, shall be, in the case of Prime-based Advances at least $100,000 and, in the case of a Eurodollar-based Advance, at least $1,000,000 250,000 or any larger amount in $100,000 increments;; and
(d) on the proposed date of such Advance, after giving effect to all Advances requested on that day, the principal amount of such Advance, plus the sum of the amount of all other outstanding Advances under this Section 2, shall not exceed the Commitment;
(e) a Request for Advance, once delivered to Bank, shall not be revocable by Company.
(f) each Request for Advance shall constitute a certification by Company, as of the date hereof:
(i) both before and after such Advance, the obligations of the Loan Parties set forth in this Agreement and the other Loan Documents to which such Persons are parties are valid, binding and enforceable obligations of such Persons;
(ii) all conditions to Advances have been satisfied and shall remain satisfied to the date of such Advance (both before and after giving effect to such Advance);
(iii) there is no Default or Event of Default in existence, and none will exist upon the making of such Advance (both before and after giving effect to such Advance);
(iv) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects and shall be true and correct in all material respects as of the making of such Advance (both before and after giving effect to such Advance), other than any representation or warranty that expressly speaks only as of a different date; and
(v) the execution of such Request for Advance will not violate the material terms and conditions of any material contract, agreement or other borrowing of Company.
2.4 irrevocable. Bank may alsomay, at its option, lend under this Section 2 upon the telephone request of an authorized officer of Company Manitex and, in the event Bank makes any such advance upon a telephone request, the requesting officer shall fax shall, if so requested by Bank, mail to Bank, on the same day as such telephone request, a Request for Advance in the form attached as Exhibit "C." Company “B.” Manitex hereby authorizes Bank to disburse Advances under this Section 2 pursuant to the telephone instructions of any person purporting to be an authorized officer of Company and, notwithstanding any provision of this Agreement to the contrary, Company Manitex and Manitex shall bear all risk of loss resulting from disbursements made upon any telephone request. Each telephone request for an Advance shall constitute a certification of the matters set forth in clause (f) the Request for Advance form as of Section 2.3. Company certifies that Schedule 2.4 lists all Company officers authorized to request Advances by telephone. Only those officers specified on Schedule 2.4 (as amended or supplemented in a writing or writings executed by Company and delivered by Company to Bank in accordance with this Agreement), and no others, are authorized to make the date of such telephone requests. Any Advance made pursuant to such telephone request shall only be deposited by Bank into Company's corporate bank account, Comerica Bank Account Number 1840278004requested Advance.
2.5 Company may prepay all or part of the outstanding balance of the Prime-based Advance(s) under the Note at any time. Upon three (3) Business Days' prior notice to Bank, Company may prepay all or part of any Eurodollar-based Advance, provided that the amount of any such partial prepayment shall be at least $100,000 and the unpaid portion of such Advance which is refunded or converted under Section 3.3 shall be subject to the limitations of Section 2.3(c) hereof. Any prepayment of a Prime-based Advance or a Eurodollar-based Advance made in accordance with this Section shall be without premium, penalty or prejudice to Company's right to reborrow under the terms of this Agreement subject, in the case of Eurodollar-based Advances, to the provisions of Section 4.1 hereof.
2.6 2.4 Proceeds of Advances under the Revolving Credit Note shall be used solely for general corporate and working capital purposes, including working capital.
(a) Provided that no Default or Event of Default has occurred and is continuing, Company may, upon at least three (3) Business Days' prior written notice to Bank, permanently reduce the Commitment in whole 2.5 The aggregate principal amount at any timeone time outstanding under the Revolving Credit Note plus the Letter of Credit Reserve shall never exceed the lesser of the Revolving Credit Maximum Amount and the Borrowing Base. Manitex shall immediately make all payments necessary to comply with this provision. Any such payments shall be applied first to outstanding Prime-based Advances and the remainder, if any, to outstanding Eurodollar-based Advances.
2.6 In addition to Advances under the Revolving Credit Note, Bank further agrees to issue, or in part commit to issue, from time to time, without premium or penalty, provided that each partial reduction standby letters of credit for the Commitment shall be account of Manitex (herein individually called a “Letter of Credit” and collectively “Letters of Credit”) in an aggregate amount equal undrawn amounts not to at least Ten exceed One Million Dollars ($10,000,0001,000,000) or at any one time outstanding; provided, however, that the sum of the aggregate remaining principal amount of the Commitment, whichever is less.
(b) If the Commitment is reduced under Sections 2.7(a) above, Company must prepay in accordance with the terms hereof the amount, if any, by which the aggregate unpaid principal amount of Advances exceeds outstanding under the amount Revolving Credit Note plus the Letter of Credit Reserve shall not exceed the lesser of the CommitmentRevolving Credit Maximum Amount and the Borrowing Base at any one time; and provided further that no Letter of Credit shall, taking into account by its terms, have an expiration date which extends beyond the aforesaid reductions thereoffifth (5th) Business Day before the Revolving Credit Maturity Date or one (1) year after issuance, together with accrued but unpaid interest on the principal amount of such prepaid Advances whichever first occurs. In addition to the date terms and conditions of prepayment. If the termination or reduction of the Commitment requires the prepayment of a Eurodollar-based Advance on a day other than the last day of the then current Interest Period applicable to such Advance, so long as no Default or Event of Default has occurred and is continuing, Company, rather than immediately prepaying the Advance, may deposit with the Bank cash collateral acceptable to the Bank in an amount equal to the prepayment and required interest payments (to the end of the then current Interest Payment) to be applied to the Advance at the end of that Interest Period. Reductions of the Commitment will not be available for reinstatement by or readvance to the Company and shall be permanent and irrevocable. If the Company permanently reduces the Commitment to zero and has satisfied all of its obligations under this Agreement, this Agreement the issuance of any Letters of Credit shall terminate (except for also be subject to the terms and conditions of any provisions which, letter of credit applications and agreements executed and delivered by their terms, explicitly survive the termination Manitex to Bank with respect thereto. Manitex shall pay to Bank annually in advance a per annum Letter of this Agreement Credit issuance fee equal to a rate to be negotiated between Manitex and the payment of obligations hereunder)Company.
Appears in 1 contract
THE INDEBTEDNESS: REVOLVING CREDIT. 2.1 Subject to the terms and conditions of this Agreement (including without limitation Section 2.3 hereof), Bank agrees to make Advances to Company at any time and from time to time from the Restatement Date effective date hereof until the Revolving Credit Maturity Date, not to exceed Eight Million Dollars ($8,000,000) in an aggregate principal amount not to exceed at any one time outstanding the Commitmentoutstanding. All of the Advances under this Section 2 shall be evidenced by the Revolving Credit Note under which Advancesadvances, repayments and readvances may be made, subject to the terms and conditions of this Agreement.
2.2 The Revolving Credit Note shall mature on the Revolving Credit Maturity Date and each Advance from time to time outstanding thereunder shall bear interest at its Applicable Interest Rate. The amount and date of each Advance, its Applicable Interest Rate, its Interest Period, if applicable, and the amount and date of any repayment shall be noted on Bank's ’s records, which records will be conclusive evidence thereof presumed correct absent manifest error.
2.3 Company may request an Advance under this Section 2 upon the delivery to Bank of a Request for Revolving Credit Advance executed by an authorized officer of Company, subject to the following:
(a) each such Request for Revolving Credit Advance shall set forth the information required on the Request for Revolving Credit Advance form annexed hereto as Exhibit "C"“B”;
(b) each such Request for Revolving Credit Advance shall be delivered to Bank by 3:00 p.m. 11:00 a.m. three (Detroit time3) Business Days prior to the day of the proposed date of Advance in the case of Eurodollar-based Advances and by 11:00 a.m. on the proposed date of Advance with respect to in the case of Prime-based Advances, and by 12:00 p.m. (Detroit time) three (3) Business Day prior to the proposed date of Advance with respect to Eurodollar-based Advances;
(c) the principal amount of such Advance, plus the amount of any outstanding indebtedness to be then combined therewith having the same Applicable Interest Rate and Interest Period, if any, shall be, in the case of Prime-based Advances at least $100,000 and, in the case of a Eurodollar-based Advance, at least $1,000,000 500,000 or any larger a greater amount in that is a multiple of $100,000 increments;100,000; and
(d) on the proposed date of such Advance, after giving effect to all Advances requested on that day, the principal amount of such Advance, plus the sum of the amount of all other outstanding Advances under this Section 2, shall not exceed the Commitment;
(e) a Request for Revolving Credit Advance, once delivered to Bank, shall not be revocable by Company.
(f) each Request for Advance shall constitute a certification by Company, as of the date hereof:
(i) both before and after such Advance, the obligations of the Loan Parties set forth in this Agreement and the other Loan Documents to which such Persons are parties are valid, binding and enforceable obligations of such Persons;
(ii) all conditions to Advances have been satisfied and shall remain satisfied to the date of such Advance (both before and after giving effect to such Advance);
(iii) there is no Default or Event of Default in existence, and none will exist upon the making of such Advance (both before and after giving effect to such Advance);
(iv) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects and shall be true and correct in all material respects as of the making of such Advance (both before and after giving effect to such Advance), other than any representation or warranty that expressly speaks only as of a different date; and
(v) the execution of such Request for Advance will not violate the material terms and conditions of any material contract, agreement or other borrowing of Company.
2.4 irrevocable. Bank may alsomay, at its option, lend under this Section 2 upon the telephone request of an authorized officer of Company and, in the event Bank makes any such advance Advance upon a telephone request, the requesting officer shall fax shall, if so requested by Bank, mail to Bank, on the same day as such telephone request, a Request for Revolving Credit Advance in the form attached as Exhibit "C." “B”. Company hereby authorizes Bank to disburse Advances under this Section 2 pursuant to the telephone instructions of any person purporting to be an authorized officer of Company and, notwithstanding any provision of this Agreement to the contrary, and Company shall bear all risk of loss resulting from disbursements made upon any telephone request. Each telephone request for an Advance shall constitute a certification of the matters set forth in clause (f) the Request for Revolving Credit Advance form as of Section 2.3. Company certifies that Schedule the date of such requested Advance.
2.4 lists all Company officers authorized to request Advances by telephone. Only those officers specified on Schedule 2.4 (as amended or supplemented in a writing or writings executed The proceeds of the Revolving Credit Note shall be used by Company to refinance indebtedness currently owing to Bank, and for working capital purposes.
2.5 In addition to Advances under the Revolving Credit Note, Bank further agrees to issue, or commit to issue, from time to time, standby Letters of Credit for the account of Company in aggregate undrawn amounts not to exceed One Million Dollars ($1,000,000) at any one time outstanding; provided, however, that the sum of the aggregate amount of Advances outstanding under the Revolving Credit Note plus the Letter of Credit Reserve shall never exceed Eight Million Dollars ($8,000,000) and; provided further, that no Letter of Credit shall, by its terms, have an expiration date which extends beyond the earlier to occur of one year after issuance or the Revolving Credit Maturity Date. In addition to the terms and conditions of this Agreement, the issuance of any Letters of Credit shall also be subject to the terms and conditions of any letter of credit applications and agreements executed and delivered by Company to Bank with respect thereto. Company shall pay to Bank annually in accordance advance a fee on the face amount of each Letter of Credit equal two percent (2%) per annum.
2.6 The aggregate principal amount at any one time outstanding under the Revolving Credit Note plus the Letter of Credit Reserve shall never exceed Eight Million Dollars ($8,000,000). Company shall immediately make all payments necessary to comply with this Agreement), and no others, are authorized to make such telephone requestsprovision. Any Advance made pursuant such payments shall be applied first to such telephone request shall only be deposited by Bank into Company's corporate bank account, Comerica Bank Account Number 1840278004.
2.5 Company may prepay all or part of the outstanding balance of the Prime-based Advance(s) under the Note at any time. Upon three (3) Business Days' prior notice to Bank, Company may prepay all or part of any Eurodollar-based Advance, provided that the amount of any such partial prepayment shall be at least $100,000 Advances and the unpaid portion of such Advance which is refunded or converted under Section 3.3 shall be subject remainder, if any, to the limitations of Section 2.3(c) hereof. Any prepayment of a Prime-based Advance or a Eurodollar-based Advance made in accordance with this Section shall be without premium, penalty or prejudice to Company's right to reborrow under the terms of this Agreement subject, in the case of outstanding Eurodollar-based Advances, to the provisions of Section 4.1 hereof.
2.6 Proceeds of Advances under 2.7 Company shall pay to Bank a per annum revolving credit facility fee on the Note shall be used for general corporate purposes, including working capital.
(a) Provided that no Default or Event of Default has occurred and is continuing, Company may, upon at least three (3) Business Days' prior written notice to Bank, permanently reduce the Commitment in whole at any time, or in part from time to time, without premium or penalty, provided that each partial reduction of the Commitment shall be in an aggregate amount equal to at least Ten Million Dollars ($10,000,000) or the aggregate remaining principal unused amount of the Commitment, whichever is less.
(b) If Revolving Credit. Such fee shall be equal to the Commitment is reduced under Sections 2.7(a) above, Company must prepay in accordance with the terms hereof the amount, if any, by which the aggregate unpaid principal amount of Advances exceeds the unused amount of the CommitmentRevolving Credit multiplied by one-quarter of one percent (1/4%), taking into account the aforesaid reductions thereof, together with accrued but unpaid interest computed on a daily basis. Such fee shall be payable quarterly in arrears on the principal amount first day of each January, April, July and October, commencing January 1, 2005. In calculating such prepaid Advances to fee, the date undrawn amounts of prepayment. If the termination or reduction all Letters of Credit shall be considered usage of the Commitment requires Revolving Credit. Such fee shall be computed on the prepayment basis of a Eurodollaryear of 360 days and assessed for the actual number of days elapsed. Such fee is non-based Advance on a day other than the last day of the then current Interest Period applicable to such Advance, so long as no Default or Event of Default has occurred and is continuing, Company, rather than immediately prepaying the Advance, may deposit with the Bank cash collateral acceptable to the Bank in an amount equal to the prepayment and required interest payments (to the end of the then current Interest Payment) to be applied to the Advance at the end of that Interest Period. Reductions of the Commitment will not be available for reinstatement by or readvance to the Company and shall be permanent and irrevocable. If the Company permanently reduces the Commitment to zero and has satisfied all of its obligations under this Agreement, this Agreement shall terminate (except for any provisions which, by their terms, explicitly survive the termination of this Agreement and the payment of obligations hereunder)refundable.
Appears in 1 contract
THE INDEBTEDNESS: REVOLVING CREDIT. 2.1 Subject to the terms and conditions of this Agreement (including without limitation Section 2.3 hereof), Bank agrees to make Advances to Company Revolver Companies at any time and from time to time from the Restatement Date effective date hereof until the Revolving Credit Maturity Date, not to exceed the Revolving Credit Maximum Amount in an aggregate principal amount not to exceed at any one time outstanding the Commitmentoutstanding. All of the Advances under this Section 2 shall be evidenced by the Revolving Credit Note under which Advancesadvances, repayments and readvances may be made, subject to the terms and conditions of this Agreement.
2.2 The Revolving Credit Note shall mature on the Revolving Credit Maturity Date and each Advance from time to time outstanding thereunder shall bear interest at its Applicable Interest Rate. The amount and date of each Advance, its Applicable Interest Rate, its Interest Period, if applicable, and the amount and date of any repayment shall be noted on Bank's ’s records, which records will be conclusive evidence thereof presumed correct absent manifest error.
2.3 Either Revolver Company may request an Advance under this Section 2 upon the delivery to Bank of a Request for Advance executed by an authorized officer of such Revolver Company, subject to the following:
(a) each such Request for Advance shall set forth the information required on the Request for Advance form annexed attached hereto as Exhibit "C"“B”;
(b) each such Request for Advance shall be delivered to Bank by 3:00 p.m. (Detroit time) 11:00 a.m. on the proposed date of Advance with respect to Prime-based Advances, and by 12:00 p.m. (Detroit time) three (3) Business Day prior to the proposed date of Advance with respect to Eurodollar-based AdvancesAdvance;
(c) the principal amount of such Advance, plus the amount of any outstanding indebtedness to be then combined therewith having the same Applicable Interest Rate and Interest Period, if any, shall be, in the case of Prime-based Advances at least $100,000 and, in the case of a Eurodollar-based Advance, at least $1,000,000 250,000 or any larger amount in $100,000 increments;; and
(d) on the proposed date of such Advance, after giving effect to all Advances requested on that day, the principal amount of such Advance, plus the sum of the amount of all other outstanding Advances under this Section 2, shall not exceed the Commitment;
(e) a Request for Advance, once delivered to Bank, shall not be revocable by Company.
(f) each Request for Advance shall constitute a certification by Company, as of the date hereof:
(i) both before and after such Advance, the obligations of the Loan Parties set forth in this Agreement and the other Loan Documents to which such Persons are parties are valid, binding and enforceable obligations of such Persons;
(ii) all conditions to Advances have been satisfied and shall remain satisfied to the date of such Advance (both before and after giving effect to such Advance);
(iii) there is no Default or Event of Default in existence, and none will exist upon the making of such Advance (both before and after giving effect to such Advance);
(iv) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects and shall be true and correct in all material respects as of the making of such Advance (both before and after giving effect to such Advance), other than any representation or warranty that expressly speaks only as of a different date; and
(v) the execution of such Request for Advance will not violate the material terms and conditions of any material contract, agreement or other borrowing of Company.
2.4 irrevocable. Bank may alsomay, at its option, lend under this Section 2 upon the telephone request of an authorized officer of either Revolver Company and, in the event Bank makes any such advance upon a telephone request, the requesting officer shall fax shall, if so requested by Bank, mail to Bank, on the same day as such telephone request, a Request for Advance in the form attached as Exhibit "C." Company “B.” Revolver Companies hereby authorizes authorize Bank to disburse Advances advances under this Section 2 pursuant to the telephone instructions of any person purporting to be an authorized officer of either Revolver Company and, notwithstanding any provision of this Agreement to the contrary, Company and Revolver Companies shall bear all risk of loss resulting from disbursements made upon any telephone request. Each telephone request for an Advance shall constitute a certification of the matters set forth in clause (f) the Request for Advance form as of Section 2.3. Company certifies that Schedule 2.4 lists all Company officers authorized to request Advances by telephone. Only those officers specified on Schedule 2.4 (as amended or supplemented in a writing or writings executed by Company and delivered by Company to Bank in accordance with this Agreement), and no others, are authorized to make the date of such telephone requests. Any Advance made pursuant to such telephone request shall only be deposited by Bank into Company's corporate bank account, Comerica Bank Account Number 1840278004requested Advance.
2.5 Company may prepay all or part of the outstanding balance of the Prime-based Advance(s) under the Note at any time. Upon three (3) Business Days' prior notice to Bank, Company may prepay all or part of any Eurodollar-based Advance, provided that the amount of any such partial prepayment shall be at least $100,000 and the unpaid portion of such Advance which is refunded or converted under Section 3.3 shall be subject to the limitations of Section 2.3(c) hereof. Any prepayment of a Prime-based Advance or a Eurodollar-based Advance made in accordance with this Section shall be without premium, penalty or prejudice to Company's right to reborrow under the terms of this Agreement subject, in the case of Eurodollar-based Advances, to the provisions of Section 4.1 hereof.
2.6 2.4 Proceeds of Advances under the Revolving Credit Note shall be used solely for general corporate and working capital purposes, including working capital.
(a) Provided that no Default or Event of Default has occurred and is continuing, Company may, upon at least three (3) Business Days' prior written notice to Bank, permanently reduce the Commitment in whole 2.5 The aggregate principal amount at any timeone time outstanding under the Revolving Credit Note plus the Letter of Credit Reserve shall never exceed the Borrowing Base. Revolver Companies shall immediately make all payments necessary to comply with this provision. Any such payments shall be applied first to outstanding Prime-based Advances and the remainder, if any, to outstanding Eurodollar-based Advances.
2.6 In addition to Advances under the Revolving Credit Note to be provided to Revolver Companies by Bank pursuant to Section 2.1 of this Agreement, Bank further agrees to issue, or in part commit to issue, from time to time, without premium or penalty, provided that each partial reduction standby letters of credit for the Commitment shall be account of Revolver Companies (herein individually called a “Letter of Credit” and collectively “Letters of Credit”) in an aggregate amount equal undrawn amounts not to at least Ten exceed One Million Dollars ($10,000,0001,000,000) or at any one time outstanding; provided, however that the sum of the aggregate remaining principal amount of the Commitment, whichever is less.
(b) If the Commitment is reduced under Sections 2.7(a) above, Company must prepay in accordance with the terms hereof the amount, if any, by which the aggregate unpaid principal amount of Advances exceeds outstanding under the Revolving Credit Note plus the Letter of Credit Reserve shall not exceed the Revolving Credit Maximum Amount at any one time; and provided further that no Letter of Credit shall, by its terms, have an expiration date which extends beyond the fifth (5th) Business Day before the Revolving Credit Maturity Date or one (1) year after issuance, whichever first occurs. In addition to the terms and conditions of this Agreement, the issuance of any Letters of Credit shall also be subject to the terms and conditions of any letter of credit applications and agreements executed and delivered by Revolver Companies to Bank with respect thereto. Revolving Companies shall pay to Bank annually in advance a per annum fee equal to three and one-quarter percent (3-1/4%) of the amount of each Letter of Credit.
2.7 All obligations of Revolver Companies under the Commitment, taking into account the aforesaid reductions thereof, together with accrued but unpaid interest on the principal amount of such prepaid Advances to the date of prepayment. If the termination or reduction Revolving Credit Note and in respect of the Commitment requires the prepayment Letters of a Eurodollar-based Advance on a day other than the last day of the then current Interest Period applicable to such Advance, so long as no Default or Event of Default has occurred and is continuing, Company, rather than immediately prepaying the Advance, may deposit with the Bank cash collateral acceptable to the Bank in an amount equal to the prepayment and required interest payments (to the end of the then current Interest Payment) to be applied to the Advance at the end of that Interest Period. Reductions of the Commitment will not be available for reinstatement by or readvance to the Company and Credit shall be permanent joint and irrevocable. If the Company permanently reduces the Commitment to zero and has satisfied all of its obligations under this Agreement, this Agreement shall terminate (except for any provisions which, by their terms, explicitly survive the termination of this Agreement and the payment of obligations hereunder)several.
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THE INDEBTEDNESS: REVOLVING CREDIT. 2.1 Subject to the terms and conditions of this Agreement (including without limitation Section 2.3 hereof)and provided no Event of Default then exists, Bank agrees to make Advances to Company at any time and Companies from time to time from the Restatement Date effective date hereof until the Maturity Date. Advances of the Revolving Credit outstanding at any time shall not, in an aggregate principal amount not to the aggregate, exceed at any one time outstanding the Commitmentlesser of the Borrowing Base or the Revolving Credit Commitment Amount. All of the Advances under this Section 2 the Revolving Credit shall be evidenced by the Revolving Credit Note under which Advancesadvances, repayments and readvances may be made, subject to the terms and conditions of this Agreement.
2.2 The Revolving Credit Note shall mature on the Revolving Credit Maturity Date and each Date. Each time a Company executes a Joinder Agreement, at Bank's request all Companies shall execute a replacement Revolving Credit Note consistent with this Agreement which replacement Note shall be delivered to Bank concurrently with cancellation of the prior Note. Each Advance from time to time outstanding thereunder under the Revolving Credit Note shall bear interest at its the Applicable Interest Rate. The amount and date of each Advance, its Applicable Interest Rate, its Interest Period, if applicable, and the amount and date of any repayment shall be noted on Bank's records, which records will be conclusive evidence thereof absent manifest error.
2.3 Company Companies may request an Advance under this Section 2 the Revolving Credit upon the delivery to Bank at its address set forth in Section 11.5 of this Agreement of a Request for Advance executed by an authorized officer signatory of Company, CALP subject to the following:
(a) a. no Event of Default shall have occurred and be continuing;
b. each such Request for Advance shall set forth the information required on the Request for Advance form annexed hereto as Exhibit "C1.48";
(b) c. each such Request for Advance shall be delivered to Bank by 3:00 p.m. 11:00 a.m. (Detroit Detroit, Michigan time) on the proposed date of Advance;
d. the requested Advance when combined with respect to Prime-based all outstanding Advances, and by 12:00 p.m. (Detroit time) three (3) Business Day prior to will not exceed the proposed date lesser of Advance with respect to Eurodollar-based Advancesthe Borrowing Base or the Revolving Loan Commitment Amount;
(c) e. the principal amount of such each Advance, plus the amount of any outstanding indebtedness to then be then combined therewith having the same Applicable Interest Rate and Interest Period, Period shall be at least One Million ($1,000,000.00) Dollars and if any, shall begreater, in the case integral multiples of Prime-based Advances at least One Hundred Thousand ($100,000 and, in the case of a Eurodollar-based Advance, at least $1,000,000 or any larger amount in $100,000 increments100,000) Dollars;
(d) on f. the proposed date of such Advance, after giving effect to all Advances requested any refunding of any outstanding LIBOR Advance shall only be on that day, the principal amount of such Advance, plus the sum last day of the amount of all other outstanding Advances under this Section 2, shall not exceed the CommitmentInterest Period applicable thereto;
(e) g. a Request for Advance, once delivered to Bank, shall not be revocable by Company.
(f) each Request for Advance shall constitute a certification by Company, as of the date hereof:
(i) both before and after such Advance, the obligations of the Loan Parties set forth in this Agreement and the other Loan Documents to which such Persons are parties are valid, binding and enforceable obligations of such Persons;
(ii) all conditions to Advances have been satisfied and shall remain satisfied to the date of such Advance (both before and after giving effect to such Advance);
(iii) there is no Default or Event of Default in existence, and none will exist upon the making of such Advance (both before and after giving effect to such Advance);
(iv) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects and shall be true and correct in all material respects as of the making of such Advance (both before and after giving effect to such Advance), other than any representation or warranty that expressly speaks only as of a different date; Companies: and
(v) the execution of such Request for Advance will not violate the material terms and conditions of any material contract, agreement or other borrowing of Company.
2.4 h. a Borrowing Base Certificate if required by Section 7.1d hereof. Bank may alsomay, at its option, lend under this Section 2 upon the telephone telefacsimile request of an authorized officer of a Company and, in the event Bank makes any such advance upon a telephone telefacsimile request, the requesting officer shall fax shall, if so requested by Bank, mail to Bank, on the same day as such telephone request, a Request for Advance in the form attached as Exhibit "C." Company 1.48". Companies hereby authorizes authorize Bank to disburse Advances advances under this Section 2 pursuant to the telephone telefacsimile instructions of any person purporting to be an authorized officer of Company and, notwithstanding any provision of this Agreement to the contrary, Company CALP and Companies shall bear all risk of loss resulting from disbursements made upon any telephone telefacsimile request. Each telephone telefacsimile request for an Advance shall constitute a certification of the matters set forth in clause (f) the Request for Advance form as of Section 2.3. Company certifies that Schedule 2.4 lists all Company officers authorized to request Advances by telephone. Only those officers specified on Schedule 2.4 (as amended or supplemented in a writing or writings executed by Company and delivered by Company to Bank in accordance with this Agreement), and no others, are authorized to make the date of such telephone requests. Any Advance made pursuant to such telephone request shall only be deposited by Bank into Company's corporate bank account, Comerica Bank Account Number 1840278004requested Advance.
2.5 Company may prepay all or part of the outstanding balance of the Prime-based Advance(s) under the Note at any time. Upon three (3) Business Days' prior notice to Bank, Company may prepay all or part of any Eurodollar-based Advance, provided that the amount of any such partial prepayment shall be at least $100,000 and the unpaid portion of such Advance which is refunded or converted under Section 3.3 shall be subject to the limitations of Section 2.3(c) hereof. Any prepayment of a Prime-based Advance or a Eurodollar-based Advance made in accordance with this Section shall be without premium, penalty or prejudice to Company's right to reborrow under the terms of this Agreement subject, in the case of Eurodollar-based Advances, to the provisions of Section 4.1 hereof.
2.6 2.4 Proceeds of Advances under the Revolving Credit Note shall be used solely for general corporate purposes, including acquisition or financing of real properties and for working capitalcapital for Companies.
(a) Provided that no Default or Event 2.5 The sum of Default has occurred and is continuing, Company may, upon at least three (3) Business Days' prior written notice to Bank, permanently reduce the Commitment in whole aggregate principal amount at any time, or in part from one time outstanding under the Revolving Credit Note shall never exceed the Borrowing Base. Companies shall immediately make all payments necessary to time, without premium or penalty, provided that each partial reduction of the Commitment shall be in an aggregate amount equal to at least Ten Million Dollars ($10,000,000) or the aggregate remaining principal amount of the Commitment, whichever is lesscomply with this provision.
(b) If the Commitment is reduced under Sections 2.7(a) above, Company must prepay in accordance with the terms hereof the amount, if any, by which the aggregate unpaid principal amount of Advances exceeds the amount of the Commitment, taking into account the aforesaid reductions thereof, together with accrued but unpaid interest on the principal amount of such prepaid Advances to the date of prepayment. If the termination or reduction of the Commitment requires the prepayment of a Eurodollar-based Advance on a day other than the last day of the then current Interest Period applicable to such Advance, so long as no Default or Event of Default has occurred and is continuing, Company, rather than immediately prepaying the Advance, may deposit with the Bank cash collateral acceptable to the Bank in an amount equal to the prepayment and required interest payments (to the end of the then current Interest Payment) to be applied to the Advance at the end of that Interest Period. Reductions of the Commitment will not be available for reinstatement by or readvance to the Company and shall be permanent and irrevocable. If the Company permanently reduces the Commitment to zero and has satisfied all of its obligations under this Agreement, this Agreement shall terminate (except for any provisions which, by their terms, explicitly survive the termination of this Agreement and the payment of obligations hereunder).
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