Advances and Interest. (a) Subject to the terms and conditions of this Agreement, we shall make up to $50,000,000 (the “Maximum Credit Facility”) available upon your request therefor. In connection with the foregoing, we will make revolving credit advances to you, in our reasonable sole discretion, in an aggregate principal amount at any time outstanding equal to the lessen of: (i) the Maximum Credit Facility or (ii) the Borrowing Base at such time. (1) Notwithstanding subparagraph 3.1(a) above and paragraph 4.15 below, upon your request and only after you have delivered to us cash flow projections in form and substance satisfactory to us in our reasonable sole discretion, we may in our sole and unfettered discretion make available to you from time to time advances in excess of the Borrowing Base not to exceed: (i) $5,000,000 at any one time outstanding and (ii) the Maximum Credit Facility (the “Overadvance Facility”). The Overadvance Facility is subject to all of the terms and conditions applicable to all revolving credit advances made hereunder. (2) The Overadvance Facility shall be repayable on demand and in any event no later than ninety (90) days from the date that such Overadvance Facility has been extended to you, shall constitute Obligations hereunder and be secured by the Collateral, and shall bear interest at the rate set forth in paragraph 3.4. 3.2 Without in any way circumscribing our rights under this Agreement, and by way of illustration only and not by way of limitation, we may, in the exercise of our reasonable sole discretion, at any time and from time to time, hold any reserve we deem necessary as security for the payment and performance of your Obligations, and/or change any advance rates or entirely cease making advances, in each case utilizing our customary credit considerations. In no event shall the aggregate amount of all revolving credit advances made pursuant to paragraph 3.1 above, from time to time outstanding, exceed the lesser of sum of the Borrowing Base and the Overadvance Facility, if such Overadvance Facility is outstanding, or the Maximum Credit Facility. 3.3 All loans and advances by us to you under this Agreement shall constitute Obligations secured by our security interest in all of the Collateral granted hereunder, and by all other security interests, liens, and encumbrances heretofore, now or at any time or times hereafter granted by you to us. All loans or advances shall be charged to your account on our books, and shall be payable on demand at our offices or at such other place as we may from time to time designate. (a) Interest shall be payable by you (and changed to your account as of the end of each month) on the average of the net balances owing by you to us in your account at the close of each day during such month. The rate of interest applicable in any given Interest Period and charged to your account (the “Applicable Interest Rate”) shall be either: (i) the Chase Rate plus the Applicable Margin or (ii) if you elect as provided subparagraph 3.4(b) below, the LIBOR Rate plus the Applicable Margin. Any change in the rate of interest hereunder due to a change in the Chase Rate or LIBOR Rate shall take effect as of the first of the month following such change in the Chase Rate or LIBOR Rate. Interest shall be calculated based on a 360-day year. Interest shall be charged on all advances, all charges hereunder, and any debit balance in your account. We shall be entitled to charge your account at the rate provided for herein until all Obligations have been paid and satisfied in full. After the occurrence of Default and for so long as such Default continues, all of the Obligations shall, at our option, bear interest at a rate per annum equal to the Default Rate. In no event shall the rate charged hereunder exceed the highest rate permissible under applicable law; however, in the event that we receive or have received interest hereunder in excess of the highest rate permissible under applicable law, your sole remedy shall be to seek repayment of such excess, and you hereby waive any and all other rights and remedies which may be available to you under law or in equity. (b) Subject to the terms and conditions hereof, you may request that the Applicable Interest Rate be the LIBOR Rate in accordance with the terms and conditions described below: (i) Provided that no Default has occurred and is continuing, you may, on at least three (3) business days’ prior written notice to us prior to the end of an Interest Period, elect to change the Applicable Interest Rate from the Chase Rate plus the Applicable Margin to the LIBOR Rate plus the Applicable Margin or from the LIBOR Rate plus the Applicable Margin to the Chase Rate plus the Applicable Margin, whichever is applicable under the circumstances. Except as provided below, the Applicable Interest Rate with respect to each subsequent Interest Period shall be the Applicable Interest Rate as of the last day of the immediately preceding Interest Period, unless you have notified us of your intent to change the Applicable Interest Rate in accordance with the immediately preceding sentence. Upon the occurrence and continuance of a Default, the Applicable Interest Rate shall be or become the Default Rate if we in our sole discretion elect to charge the Default Rate. (ii) Notwithstanding anything to the contrary contained herein, we shall not be required to purchase United States Dollar deposits in the London interbank market or from any other applicable LIBOR Rate market or source or otherwise “match funds” to fund any loans, but any and all provisions hereof relating to LIBOR Rates shall be deemed to apply as if we had purchased such deposits to fund any LIBOR Rates. 3.5 In addition to the fees and changes under this Agreement, you will pay us, as of the date hereof, a facility fee in the amount of $50,000.00, which shall be inclusive of all fees for the use of our in-house counsel in connection with the initial preparation, negotiation, execution and delivery of this Agreement and all other agreements and documents executed in connection therewith. 3.6 We shall be entitled to receive and you shall pay us a Collateral management fee of $1,000.00 per month, which we shall charge to your account as of the end of each fiscal month. 3.7 We shall render to you each month a statement of your account which shall be deemed to be correct and accepted by and binding upon you, and shall constitute an account stated between us except to the extent that we receive a written statement of your specific exceptions, within thirty (30) days after such statement has been rendered to you. 3.8 You shall make each payment under this Agreement on the day when due in immediately available funds in U.S. Dollars. If we receive any payment from you or on behalf of you in a currency other than in U.S. Dollars, we shall convert the payment (including the monetary proceeds of realization upon any Collateral) into the Equivalent Amount of U.S. Dollars as determined on the Business Day immediately preceding the date of receipt of such actual payment. The Obligations shall be satisfied only to the extent of the amount actually received by us upon such conversion.
Appears in 1 contract
Sources: Accounts Receivable Financing Agreement (Under Armour, Inc.)
Advances and Interest. (a) 3.1 Subject to the terms and conditions of this Agreement, we shall make up to an aggregate of $50,000,000 7,500,000.00 (the “"Maximum Credit Facility”") available to you and your affiliates Blumenthal/Lansing Company and Westwater Industries, Inc. (▇▇▇▇▇▇▇▇▇ to each such affiliate under their respective financing agreements), at closing as follows: (i) a Term Loan, evidenced by the Term Loan Promissory Note of even date herewith, in the principal amount of $2,000,000 (herein the "Term Loan"), and (ii) revolving credit advances in an amount of up to $500,000 in the aggregate outstanding at any time made to you upon your request therefor. In connection with the foregoing, as follows:
(a) we will make revolving credit advances to you, in our sole discretion exercised by us in accordance with our reasonable sole discretionbusiness judgment, in an aggregate principal amount at any time outstanding equal amounts of up to the lessen of: lesser of (i) the Maximum Credit Facility $500,000, or (ii) the Borrowing Base at difference between (x) the net value of the securities and/or cash equivalents pledged to us by Robert A. Levinson pursuant to a Pledge of B▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ herewith, based on the trading value of such timesecurities less any unpaid costs, fees or commission as of the date of calculation thereof and (y) the outstanding amount of the Term Loan.
(1b) Notwithstanding subparagraph 3.1(a) above and paragraph 4.15 below, upon your request and only after you have delivered to us cash flow projections in form and substance satisfactory to us in our reasonable sole discretion, we may in our sole and unfettered discretion make available to you from time to time advances in excess of the Borrowing Base not to exceed: (i) $5,000,000 at any one time outstanding and (ii) the Maximum Credit Facility (the “Overadvance Facility”). The Overadvance Facility is subject to all of the foregoing, you may borrow, repay and reborrow revolving advances, within and subject to the limitations and terms and conditions applicable to all revolving credit advances made hereunder.
(2) The Overadvance Facility shall be repayable on demand and in any event no later than ninety (90) days from the date that such Overadvance Facility has been extended to you, shall constitute Obligations hereunder and be secured by the Collateral, and shall bear interest at the rate set forth in paragraph 3.4condition hereof.
3.2 Without in any way circumscribing our rights under this Agreement, and by way of illustration only and not by way of limitation, we may, in the exercise of our reasonable sole discretion, at any time and from time to time, hold any reserve we deem necessary as security for the payment and performance of your Obligations, and/or change any advance rates or entirely cease making advancesadvances (including, in each case utilizing our customary credit considerationswithout limitation, any overadvances). In no event shall the aggregate amount of all revolving credit advances (including, without limitation, any overadvances) made pursuant to paragraph 3.1 (a) above, from time to time outstanding, exceed the lesser of sum of the Borrowing Base and the Overadvance Facility, if such Overadvance Facility is outstanding, or the Maximum Credit Facility.
3.3 All loans and advances (including, without limitation, any overadvances) by us to you under this Agreement shall constitute Obligations secured by our security interest in all of the Collateral granted hereunder, and by all other security interests, liens, and encumbrances heretofore, now or at any time or times hereafter granted by you to us. All loans or advances (including, without limitation, any overadvances) shall be charged to your account on our books, and shall be payable on demand at our offices or at such other place as we may from time to time designate.
(a) 3.4 Interest shall be payable by you (and changed charged to your account as of the end of each month) on the average of the net balances owing by you to us in your account at the close of each day during such month. The rate of interest applicable in any given Interest Period and charged to your account (the “Applicable Interest Rate”) shall be either: one-half of one percent (i.50%) per annum in excess of the Chase Rate plus the Applicable Margin or but in no event less than five percent (ii5%) if you elect as provided subparagraph 3.4(b) below, the LIBOR Rate plus the Applicable Marginper annum. Any change in the rate of interest hereunder due to a change in the Chase Rate or LIBOR Rate shall take effect as of the first of the month following such change in the Chase Rate or LIBOR Rate. Interest shall be calculated based on a 360-day year. Interest shall be charged on all advancesadvances (including, without limitation, any overadvances), all charges hereunder, and any debit balance in your account. We shall be entitled to charge your account at the rate provided for herein until all Obligations have been paid and satisfied in full. After the occurrence of Default and for so long as such Default continues, all of the Obligations shall, at our option, bear interest at a rate per annum equal to the Default Rate. In no event shall the rate charged hereunder exceed the highest rate permissible under applicable law; however, in the event that we receive or have received interest hereunder in excess of the highest rate permissible under applicable law, your sole remedy shall be to seek repayment of such excess, and you hereby waive any and all other rights and remedies which may be available to you under law or in equity.
(b) Subject to the terms and conditions hereof, you may request that the Applicable Interest Rate be the LIBOR Rate in accordance with the terms and conditions described below:
(i) Provided that no Default has occurred and is continuing, you may, on at least three (3) business days’ prior written notice to us prior to the end of an Interest Period, elect to change the Applicable Interest Rate from the Chase Rate plus the Applicable Margin to the LIBOR Rate plus the Applicable Margin or from the LIBOR Rate plus the Applicable Margin to the Chase Rate plus the Applicable Margin, whichever is applicable under the circumstances. Except as provided below, the Applicable Interest Rate with respect to each subsequent Interest Period shall be the Applicable Interest Rate as of the last day of the immediately preceding Interest Period, unless you have notified us of your intent to change the Applicable Interest Rate in accordance with the immediately preceding sentence. Upon the occurrence and continuance of a Default, the Applicable Interest Rate shall be or become the Default Rate if we in our sole discretion elect to charge the Default Rate.
(ii) Notwithstanding anything to the contrary contained herein, we shall not be required to purchase United States Dollar deposits in the London interbank market or from any other applicable LIBOR Rate market or source or otherwise “match funds” to fund any loans, but any and all provisions hereof relating to LIBOR Rates shall be deemed to apply as if we had purchased such deposits to fund any LIBOR Rates.
3.5 In addition to the fees and changes charges under this Agreement, you will pay and your affiliates Blumenthal/Lansing Company and Westwater Industries, Inc., ▇▇▇▇▇ ▇▇ ▇ay to us, jointly and severally, as of the date hereof, a facility fee Documentation Fee in the aggregate amount of $50,000.00, which shall be inclusive of all fees 10,000 to compensate us for the use of our in-house counsel legal department and facilities in connection with documenting the initial preparation, negotiation, execution and delivery of this Agreement and all other agreements and documents executed in connection therewithrespective financing agreements.
3.6 We You and your affiliates Blumenthal/Lansing Company and Westwater Industries, Inc., ▇▇▇▇▇ ▇▇ ▇ay to us, jointly and severally, a Monthly Collateral Management Fee in an aggregate amount of $2,500.00, which shall be entitled to receive due and payable by you on the first day of each month and shall pay us a Collateral management fee of $1,000.00 per month, which we shall charge be charged to your account as of such date. As an accommodation to you and your affiliates, and subject to our rights hereunder, we shall charge your account with your pro rata share thereof on such date in the end amount of $833.34. Such facility fee shall be deemed earned as of the first day of each fiscal monthmonth and shall not be subject to rebate or proration for any reason.
3.7 We shall render to you each month a statement of your account which shall be deemed to be correct and accepted by and binding upon you, and shall constitute an account stated between us except to the extent that we receive a written statement of your specific exceptions, exceptions within thirty sixty (3060) days after such statement has been rendered to you.
3.8 You shall make each payment under this Agreement on the day when due in immediately available funds in U.S. Dollars. If we receive any payment from you or on behalf of you in a currency other than in U.S. Dollars, we shall convert the payment (including the monetary proceeds of realization upon any Collateral) into the Equivalent Amount of U.S. Dollars as determined on the Business Day immediately preceding the date of receipt of such actual payment. The Obligations shall be satisfied only to the extent of the amount actually received by us upon such conversion.
Appears in 1 contract