Competitive Bid Procedure. (a) In order to request Competitive Bids, the Borrowers shall hand deliver or telecopy to the Administrative Agent and the Auction Administration Agent a duly completed Competitive Bid Request, to be received by the Administrative Agent and the Auction Administration Agent (i) in the case of Eurodollar Advances, not later than 9:00 a.m., Dallas, Texas time, four Business Days before the requested date of such Competitive Advance and (ii) in the case of Fixed Rate Advances, not later than 9:00 a.m., Dallas, Texas time, one Business Day before the requested date of such Competitive Advance. No Alternate Base Rate Advance shall be requested in, or, except pursuant to Section 4.4, made pursuant to, a Competitive Bid Request. A Competitive Bid Request that does not conform substantially to the format of Exhibit "B-2" may be rejected at the Auction Administration Agent's sole discretion, and the Auction Administration Agent shall promptly notify the Borrowers of such rejection by telecopier. Each Competitive Bid Request shall in each case refer to this Agreement and specify (w) the Borrower to whom such Advance is to be made, (x) the Type of the Advance, (y) the requested date of such Competitive Advance (which shall be a Business Day) and the aggregate principal amount thereof (which shall not be less than $10,000,000 or greater than the unused Total Commitment on the requested date for such Competitive Advance and shall be an integral multiple of $1,000,000), and (z) the Interest Period with respect thereto (which may not end after the Termination Date). Promptly after its receipt of a Competitive Bid Request that is not rejected as aforesaid, the Auction Administration Agent shall invite by telecopier (substantially in the form set forth in Exhibit B-3 hereto) the Banks to bid, on the terms and conditions of this Agreement, to make Competitive Advances pursuant to such Competitive Bid Request. (b) Each Bank may, in its sole discretion, make one or more Competitive Bids to the Borrowers responsive to each Competitive Bid Request. Each Competitive Bid by a Bank must be received by the Auction Administration Agent via telecopier, substantially in the form of Exhibit B-4 hereto, (i) in the case of Eurodollar Advances, not later than 9:00 a.m., Dallas, Texas time, three Business Days before the requested date for a proposed Competitive Advance and (ii) in the case of Fixed Rate Advances, not later than 8:30 a.m., Dallas, Texas time, on the day of a proposed Competitive Advance. Competitive Bids that do not conform substantially to the format of Exhibit B-4 may be rejected by the Auction Administration Agent after conferring with, and upon the instruction of, the Borrowers, and the Auction Administration Agent shall notify the non-conforming Bank of such rejection as soon as practicable. Each Competitive Bid shall refer to this Agreement and (x) specify the principal amount (which shall be in a minimum principal amount of $5,000,000 and in an integral multiple of $1,000,000 and which may equal the entire principal amount of the Competitive Advance requested by the Borrowers) of the Competitive Advance the Bank is willing to make to the Borrowers, (y) specify the Competitive Bid Rate(s) at which the Bank is prepared to make the Competitive Advance and (z) confirm the Interest Period with respect thereto specified by the Borrowers in the Competitive Bid Request. A Competitive Bid submitted by a Bank pursuant to this paragraph (b) shall be irrevocable. (c) The Auction Administration Agent shall promptly notify the Borrowers by telecopier of all the Competitive Bids made, the Competitive Bid Rate and the principal amount of each Competitive Advance in respect of which a Competitive Bid was made and the identity of the Bank that made each bid. The Auction Administration Agent shall send a copy of all Competitive Bids to the Borrowers for their records as soon as practicable after completion of the bidding process set forth in this Section 2.6. (d) The Borrowers may in their sole and absolute discretion, subject only to the provisions of this Section 2.6(d), accept or reject any or all of the Competitive Bids referred to in paragraph (c) above; provided, however, that the aggregate amount of the Competitive Bids so accepted by the Borrowers may not exceed the principal amount of the Competitive Advance requested by the Borrowers. The Borrowers shall notify the Auction Administration Agent by telecopier whether and to what extent they have decided to accept or reject any or all of the bids referred to in paragraph (c) above, (i) in the case of Eurodollar Advances, not later than 11:00 a.m., Dallas, Texas time, three Business Days before the requested date for a proposed Competitive Advance and (ii) in the case of Fixed Rate Advances, not later than 9:30 a.m., Dallas, Texas time, on the day specified for a proposed Competitive Advance; provided, however, that (w) the failure by the Borrowers to give such notice shall be deemed to be a rejection of all the bids referred to in paragraph (c) above, (x) the Borrowers shall not accept a bid made at a particular Competitive Bid Rate if the Borrowers have decided to reject a bid made at a lower Competitive Bid Rate, (y) if the Borrowers shall accept bids made at a particular Competitive Bid Rate but shall be restricted by other conditions hereof from borrowing the full principal amount of Competitive Advances in respect of which bids at such Competitive Bid Rate have been made or shall not require the full amount offered thereby, then the Borrowers shall accept a pro rata portion of each bid made at such Competitive Bid Rate based as nearly as possible on the respective principal amounts of Competitive Advances for which such bids were made and (z) no bid shall be accepted for a Competitive Advance unless such Competitive Advance is in a minimum principal amount of $5,000,000 and an integral multiple of $1,000,000. Notwithstanding the foregoing clause (z), if it is necessary for the Borrowers to accept a pro rata allocation of the bids made in response to a Competitive Bid Request (whether pursuant to the events specified in clause (y) above or otherwise) and the available principal amount of Competitive Advances to be allocated among the Banks is not sufficient to enable Competitive Advances to be allocated to each Bank in a minimum principal amount of $5,000,000 and in integral multiples of $1,000,000, then the Borrowers shall select the Banks to be allocated such Competitive Advances and shall round allocations up or down to the next higher or lower multiple of $500,000 as it shall deem appropriate. A notice given by the Borrowers pursuant to this paragraph (d) shall be irrevocable. (e) The Auction Administration Agent shall promptly notify each bidding Bank whether or not its Competitive Bid has been accepted (and if so, in what amount and at what Competitive Bid Rate) by telecopier, and each successful bidder will thereupon become bound, subject to the other applicable conditions hereof, to make the Competitive Advance in respect of which its bid has been accepted. After completing the notifications referred to in the immediately preceding sentence, the Auction Administration Agent shall (i) notify the Administrative Agent of each Competitive Bid that has been accepted, the amount thereof and the Competitive Bid Rate therefor and (ii) notify each Bank of the aggregate principal amount of all Competitive Bids accepted. (f) Upon receipt from the Administrative Agent of the Eurodollar Rate applicable to any Eurodollar Advance to be made by any Bank pursuant to a Competitive Bid that has been accepted by the Borrowers pursuant to Section 2.6(d), the Auction Administration Agent shall notify such Bank of (i) the applicable Eurodollar Rate and (ii) the sum of the applicable Eurodollar Rate plus the Margin bid by such Bank. (g) No Competitive Bid Request shall be made within five Business Days of the date of any other Competitive Bid Request, unless the Borrowers and the Auction Administration Agent shall mutually agree otherwise. (h) If the Auction Administration Agent or any of its Affiliates shall at any time have a Commitment hereunder and shall elect to submit a Competitive Bid in its capacity as a Bank, such Bank shall submit such bid directly to the Borrowers one quarter of an hour earlier than the latest time at which the other Banks are required to submit their bids to the Auction Administration Agent pursuant to paragraph (b) above. (i) All notices required by this Section 2.6 shall be made in accordance with Section 12.10. (j) Each Bank shall make its portion of each Competitive Advance on the date specified for such Competitive Advance thereof by paying the amount required to the Administrative Agent at the Principal Office in immediately available funds not later than 12:00 noon, Dallas, Texas time, and the Administrative Agent shall by 2:00 p.m., Dallas, Texas time, credit the amounts so received to the general deposit account of the specified Borrower with the Administrative Agent or, if Competitive Advances are not made on such date because any condition precedent to an Advance herein specified shall not have been met, return the amounts so received to the respective Banks as soon as practicable.
Appears in 1 contract
Sources: Credit Agreement (Global Industrial Technologies Inc)
Competitive Bid Procedure. (a) In order to request Competitive Bids, the Borrowers Company shall hand deliver or telecopy to the Administrative Agent and the Auction Administration Agent a duly completed Competitive Bid Request, to be received by the Administrative Agent and the Auction Administration Agent (i) in the case of Eurodollar AdvancesLoans, not later than 9:00 a.m., DallasHouston, Texas time, four Business Days before the requested date of such Borrowing Date specified for a proposed Competitive Advance Borrowing and (ii) in the case of Fixed Rate AdvancesLoans, not later than 9:00 a.m., DallasHouston, Texas time, one Business Day before the requested date of such Borrowing Date specified for a proposed Competitive AdvanceBorrowing. No Alternate Base Rate Advance Loan shall be requested in, or, except pursuant to Section 4.42.14, made pursuant to, a Competitive Bid Request. A Competitive Bid Request that does not conform substantially to the format of Exhibit "B-2" A-1 may be rejected at the Auction Administration Agent's sole discretion, and the Auction Administration Agent shall promptly notify the Borrowers of such rejection by telecopier. Each Competitive Bid Request shall in each case refer to this Agreement and specify (w) the Borrower to whom such Advance is to be made, (x) the Type of the Advance, (y) the requested date of such Competitive Advance (which shall be a Business Day) and the aggregate principal amount thereof (which shall not be less than $10,000,000 or greater than the unused Total Commitment on the requested date for such Competitive Advance and shall be an integral multiple of $1,000,000), and (z) the Interest Period with respect thereto (which may not end after the Termination Date). Promptly after its receipt of a Competitive Bid Request that is not rejected as aforesaid, the Auction Administration Agent shall invite by telecopier (substantially in the form set forth in Exhibit B-3 hereto) the Banks to bid, on the terms and conditions of this Agreement, to make Competitive Advances pursuant to such Competitive Bid Request.Agent
(b) Each Bank may, in its sole discretion, make one or more Competitive Bids to the Borrowers Company responsive to each Competitive Bid Request. Each Competitive Bid by a Bank must be received by the Auction Administration Agent via telecopier, substantially in the form of Exhibit B-4 C hereto, (i) in the case of Eurodollar AdvancesLoans, not later than 9:00 a.m., DallasHouston, Texas time, three Business Days before the requested date Borrowing Date specified for a proposed Competitive Advance Borrowing and (ii) in the case of Fixed Rate AdvancesLoans, not later than 8:30 a.m., DallasHouston, Texas time, on the day of a proposed Competitive AdvanceBorrowing. Competitive Bids that do not conform substantially to the format of Exhibit B-4 C may be rejected by the Auction Administration Agent after conferring with, and upon the instruction of, the BorrowersCompany, and the Auction Administration Agent shall notify the non-conforming Bank of such rejection as soon as practicable. Each Competitive Bid shall refer to this Agreement and (x) specify the principal amount (which shall be in a minimum principal amount of $5,000,000 and in an integral multiple of $1,000,000 and which may equal the entire principal amount of the Competitive Advance Borrowing requested by the BorrowersCompany) of the Competitive Advance Loan the Bank is willing to make to the BorrowersCompany, (y) specify the Competitive Bid Rate(s) at which the Bank is prepared to make the Competitive Advance Loan and (z) confirm the Interest Period with respect thereto specified by the Borrowers Company in the its Competitive Bid Request. A Competitive Bid submitted by a Bank pursuant to this paragraph (b) shall be irrevocable.
(c) The Auction Administration Agent shall promptly notify the Borrowers Company by telecopier of all the Competitive Bids made, the Competitive Bid Rate and the principal amount of each Competitive Advance Loan in respect of which a Competitive Bid was made and the identity of the Bank that made each bid. The Auction Administration Agent shall send a copy of all Competitive Bids to the Borrowers Company for their its records as soon as practicable after completion of the bidding process set forth in this Section 2.62.2.
(d) The Borrowers Company may in their its sole and absolute discretion, subject only to the provisions of this Section 2.6(d2.2(d), accept or reject any or all of the Competitive Bids referred to in paragraph (c) above; provided, however, that the aggregate amount of the Competitive Bids so accepted by the Borrowers Company may not exceed the principal amount of the Competitive Advance Borrowing requested by the BorrowersCompany. The Borrowers Company shall notify the Auction Administration Agent by telecopier whether and to what extent they have it has decided to accept or reject any or all of the bids referred to in paragraph (c) above, (i) in the case of Eurodollar AdvancesLoans, not later than 11:00 a.m., DallasHouston, Texas time, three Business Days before the requested date Borrowing Date specified for a proposed Competitive Advance Borrowing and (ii) in the case of Fixed Rate AdvancesLoans, not later than 9:30 a.m., DallasHouston, Texas time, on the day specified for a proposed Competitive AdvanceBorrowing; provided, however, that (w) the failure by the Borrowers Company to give such notice shall be deemed to be a rejection of all the bids referred to in paragraph (c) above, (x) the Borrowers Company shall not accept a bid made at a particular Competitive Bid Rate if the Borrowers have Company has decided to reject a bid made at a lower Competitive Bid Rate, (y) if the Borrowers Company shall accept bids made at a particular Competitive Bid Rate but shall be restricted by other conditions hereof from borrowing the full principal amount of Competitive Advances Loans in respect of which bids at such Competitive Bid Rate have been made or shall not require the full amount offered thereby, then the Borrowers Company shall accept a pro rata portion of each bid made at such Competitive Bid Rate based as nearly as possible on the respective principal amounts of Competitive Advances Loans for which such bids were made and (z) no bid shall be accepted for a Competitive Advance Loan unless such Competitive Advance Loan is in a minimum principal amount of $5,000,000 and an integral multiple of $1,000,000. Notwithstanding the foregoing clause (z), if it is necessary for the Borrowers to accept a pro rata allocation of the bids made in response to a Competitive Bid Request (whether pursuant to the events specified in clause (y) above or otherwise) and the available principal amount of Competitive Advances to be allocated among the Banks is not sufficient to enable Competitive Advances to be allocated to each Bank in a minimum principal amount of $5,000,000 and in integral multiples of $1,000,000, then the Borrowers shall select the Banks to be allocated such Competitive Advances and shall round allocations up or down to the next higher or lower multiple of $500,000 as it shall deem appropriate. A notice given by the Borrowers pursuant to this paragraph (d) shall be irrevocable.a
(e) The Auction Administration Agent shall promptly notify each bidding Bank whether or not its Competitive Bid has been accepted (and if so, in what amount and at what Competitive Bid Rate) by telecopier, and each successful bidder will thereupon become bound, subject to the other applicable conditions hereof, to make the Competitive Advance Loan in respect of which its bid has been accepted. After completing the notifications referred to in the immediately preceding sentence, the Auction Administration Agent shall (i) notify the Administrative Agent of each Competitive Bid that has been accepted, the amount thereof and the Competitive Bid Rate therefor and (ii) notify each Bank of the aggregate principal amount of all Competitive Bids accepted.
(f) Upon receipt from the Administrative Agent of the Eurodollar LIBO Rate applicable to any Eurodollar Advance Loan to be made by any Bank pursuant to a Competitive Bid that has been accepted by the Borrowers Company pursuant to Section 2.6(d2.2(d), the Auction Administration Agent shall notify such Bank of (i) the applicable Eurodollar LIBO Rate and (ii) the sum of the applicable Eurodollar LIBO Rate plus the Margin bid by such Bank.
(g) No Competitive Bid Request shall be made within five Business Days of the date of any other Competitive Bid Request, unless the Borrowers Company and the Auction Administration Agent shall mutually agree otherwise.
(h) If the Auction Administration Agent or any of its Affiliates shall at any time have a Commitment hereunder and shall elect to submit a Competitive Bid in its capacity as a Bank, such Bank it shall submit such bid directly to the Borrowers Company one quarter of an hour earlier than the latest time at which the other Banks are required to submit their bids to the Auction Administration Agent pursuant to paragraph (b) above.
(i) All notices required by this Section 2.6 2.2 shall be made in accordance with Section 12.108.2.
(j) Each Bank shall make its portion of each Competitive Advance on the date specified for such Competitive Advance thereof by paying the amount required to the Administrative Agent at the Principal Office in immediately available funds not later than 12:00 noon, Dallas, Texas time, and the Administrative Agent shall by 2:00 p.m., Dallas, Texas time, credit the amounts so received to the general deposit account of the specified Borrower with the Administrative Agent or, if Competitive Advances are not made on such date because any condition precedent to an Advance herein specified shall not have been met, return the amounts so received to the respective Banks as soon as practicable.
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Facility Agreement (Southwest Airlines Co)
Competitive Bid Procedure. (a) In order to request Competitive Bids, the Borrowers a Borrower shall hand deliver or telecopy to the Administrative Agent and the Auction Administration Agent Agents a duly completed Competitive Bid Request, to be received by the Administrative Agent and the Auction Administration Agent such Agents (i) in the case of a Eurodollar AdvancesCompetitive Borrowing, not later than 9:00 a.m., DallasHouston, Texas time, four five Business Days before the requested date of such Borrowing Date specified for a proposed Competitive Advance Borrowing, and (ii) in the case of a Fixed Rate AdvancesBorrowing, not later than 9:00 a.m., DallasHouston, Texas time, one Business Day before the requested date of such Borrowing Date specified for a proposed Competitive AdvanceBorrowing. No Alternate Base Rate Advance CD Loan or Eurodollar Committed Loan shall be requested in or made pursuant to a Competitive Bid Request. No ABR Loan shall be requested in, or, except pursuant to Section 4.42.11 or Section 2.15, made pursuant to, a Competitive Bid Request. A Competitive Bid Request that does not conform substantially to the format of Exhibit "B-2" 2.03(A) may be rejected at the Auction Administration Agent's sole discretion, and the Auction Administration Agent shall promptly notify the Borrowers Borrower requesting such Competitive Bid of such rejection by telecopier. Each Competitive Bid Request shall in each case refer to this Agreement and specify (wx) whether the Borrower to whom such Advance Competitive Borrowing then being requested is to be made, (x) the Type of the Advancea Eurodollar Competitive Borrowing or a Fixed Rate Borrowing, (y) the requested date Borrowing Date of such Competitive Advance Borrowing (which shall be a Business Day) and the aggregate principal amount thereof (which shall not be less than in a minimum principal amount of $10,000,000 or greater than the unused Total Commitment on the requested date for such Competitive Advance 50,000,000 and shall be in an integral multiple of $1,000,000), and (z) the Interest Period with respect thereto (which may not end after the Termination Date)thereto. Promptly after its receipt of a Competitive Bid Request that is not rejected as aforesaid, the Auction Administration Agent shall invite by telecopier (in substantially in the form set forth in Exhibit B-3 hereto2.03(B)) the Banks to bid, on the terms and conditions of this Agreement, to make Competitive Advances Loans pursuant to such Competitive Bid Request. Notwithstanding the foregoing, the Auction Administration Agent shall have no obligation to invite any Bank to make a Competitive Bid pursuant to this Section 2.03(a) until such Bank has delivered a properly completed Administrative Questionnaire to the Administrative Agent.
(b) Each On and after the Effective Date, each Bank may, in its sole discretion, make one or more Competitive Bids to the Borrowers responsive to each Competitive Bid RequestRequest of a Borrower. Each Competitive Bid by a Bank must be received by the Auction Administration Agent via telecopier, substantially in the form of Exhibit B-4 hereto2.03(C), (i) in the case of a Eurodollar AdvancesCompetitive Borrowing, not later than 9:00 a.m.1:00 p.m., DallasHouston, Texas time, three four Business Days before the requested date Borrowing Date specified for a proposed Competitive Advance Borrowing and (ii) in the case of a Fixed Rate AdvancesBorrowing, not later than 8:30 9:00 a.m., DallasHouston, Texas time, on the day of Borrowing Date specified for a proposed Competitive AdvanceBorrowing. Competitive Bids that do not conform substantially to the format of Exhibit B-4 2.03(C) may be rejected by the Auction Administration Agent after conferring with, and upon the instruction of, the BorrowersBorrower requesting such Competitive Bid, and the Auction Administration Agent shall notify the non-conforming applicable Bank of such rejection as soon as practicable. Each Competitive Bid shall refer to this Agreement and (x) specify the principal amount (which shall be in a minimum principal amount of $5,000,000 and in an integral multiple of $1,000,000 and which may equal the entire principal amount of the Competitive Advance requested by the Borrowers) of the Competitive Advance the Bank is willing to make to the Borrowers, (y) specify the Competitive Bid Rate(s) at which the Bank is prepared to make the Competitive Advance and (z) confirm the Interest Period with respect thereto specified by the Borrowers in the Competitive Bid Request. A Competitive Bid submitted by a Bank pursuant to this paragraph (b) shall be irrevocable.
(c) The Auction Administration Agent shall promptly notify the Borrowers by telecopier of all the Competitive Bids made, the Competitive Bid Rate and the principal amount of each Competitive Advance in respect of which a Competitive Bid was made and the identity of the Bank that made each bid. The Auction Administration Agent shall send a copy of all Competitive Bids to the Borrowers for their records as soon as practicable after completion of the bidding process set forth in this Section 2.6.
(d) The Borrowers may in their sole and absolute discretion, subject only to the provisions of this Section 2.6(d), accept or reject any or all of the Competitive Bids referred to in paragraph (c) above; provided, however, that the aggregate amount of the Competitive Bids so accepted by the Borrowers may not exceed the principal amount of the Competitive Advance requested by the Borrowers. The Borrowers shall notify the Auction Administration Agent by telecopier whether and to what extent they have decided to accept or reject any or all of the bids referred to in paragraph (c) above, (i) in the case of Eurodollar Advances, not later than 11:00 a.m., Dallas, Texas time, three Business Days before the requested date for a proposed Competitive Advance and (ii) in the case of Fixed Rate Advances, not later than 9:30 a.m., Dallas, Texas time, on the day specified for a proposed Competitive Advance; provided, however, that (w) the failure by the Borrowers to give such notice shall be deemed to be a rejection of all the bids referred to in paragraph (c) above, (x) the Borrowers shall not accept a bid made at a particular Competitive Bid Rate if the Borrowers have decided to reject a bid made at a lower Competitive Bid Rate, (y) if the Borrowers shall accept bids made at a particular Competitive Bid Rate but shall be restricted by other conditions hereof from borrowing the full principal amount of Competitive Advances in respect of which bids at such Competitive Bid Rate have been made or shall not require the full amount offered thereby, then the Borrowers shall accept a pro rata portion of each bid made at such Competitive Bid Rate based as nearly as possible on the respective principal amounts of Competitive Advances for which such bids were made and (z) no bid shall be accepted for a Competitive Advance unless such Competitive Advance is in a minimum principal amount of $5,000,000 and an integral multiple of $1,000,000. Notwithstanding the foregoing clause (z), if it is necessary for the Borrowers to accept a pro rata allocation of the bids made in response to a Competitive Bid Request (whether pursuant to the events specified in clause (y) above or otherwise) and the available principal amount of Competitive Advances to be allocated among the Banks is not sufficient to enable Competitive Advances to be allocated to each Bank in a minimum principal amount of $5,000,000 and in integral multiples of $1,000,000, then the Borrowers shall select the Banks to be allocated such Competitive Advances and shall round allocations up or down to the next higher or lower multiple of $500,000 as it shall deem appropriate. A notice given by the Borrowers pursuant to this paragraph (d) shall be irrevocable.
(e) The Auction Administration Agent shall promptly notify each bidding Bank whether or not its Competitive Bid has been accepted (and if so, in what amount and at what Competitive Bid Rate) by telecopier, and each successful bidder will thereupon become bound, subject to the other applicable conditions hereof, to make the Competitive Advance in respect of which its bid has been accepted. After completing the notifications referred to in the immediately preceding sentence, the Auction Administration Agent shall (i) notify the Administrative Agent of each Competitive Bid that has been accepted, the amount thereof and the Competitive Bid Rate therefor and (ii) notify each Bank of the aggregate principal amount of all Competitive Bids accepted.
(f) Upon receipt from the Administrative Agent of the Eurodollar Rate applicable to any Eurodollar Advance to be made by any Bank pursuant to a Competitive Bid that has been accepted by the Borrowers pursuant to Section 2.6(d), the Auction Administration Agent shall notify such Bank of (i) the applicable Eurodollar Rate and (ii) the sum of the applicable Eurodollar Rate plus the Margin bid by such Bank.
(g) No Competitive Bid Request shall be made within five Business Days of the date of any other Competitive Bid Request, unless the Borrowers and the Auction Administration Agent shall mutually agree otherwise.
(h) If the Auction Administration Agent or any of its Affiliates shall at any time have a Commitment hereunder and shall elect to submit a Competitive Bid in its capacity as a Bank, such Bank shall submit such bid directly to the Borrowers one quarter of an hour earlier than the latest time at which the other Banks are required to submit their bids to the Auction Administration Agent pursuant to paragraph (b) above.
(i) All notices required by this Section 2.6 shall be made in accordance with Section 12.10.
(j) Each Bank shall make its portion of each Competitive Advance on the date specified for such Competitive Advance thereof by paying the amount required to the Administrative Agent at the Principal Office in immediately available funds not later than 12:00 noon, Dallas, Texas time, and the Administrative Agent shall by 2:00 p.m., Dallas, Texas time, credit the amounts so received to the general deposit account of the specified Borrower with the Administrative Agent or, if Competitive Advances are not made on such date because any condition precedent to an Advance herein specified shall not have been met, return the amounts so received to the respective Banks as soon as practicable.of
Appears in 1 contract
Sources: Revolving Credit Agreement (Browning Ferris Industries Inc)
Competitive Bid Procedure. Procedure
(a) In order to request Competitive Bids, the Borrowers Company shall hand deliver deliver, telex or telecopy to the Administrative Agent and the Auction Administration Agent a duly completed request substantially in the form of Exhibit G, with the blanks appropriately completed (a "Competitive Bid Request"), to be received by the Administrative Agent and the Auction Administration Agent (i) in the case of Eurodollar Advances, not later than 9:00 11:00 a.m., DallasHouston, Texas time, four five Business Days before the requested date of such specified for a proposed Competitive Advance and (ii) in the case of Fixed Rate Advances, not later than 9:00 a.m., Dallas, Texas time, one Business Day before the requested date of such Competitive AdvanceLoan. No Alternate Base Rate Advance Loan shall be requested in, or, except pursuant to Section 4.46, made pursuant to, a Competitive Bid Request. A Competitive Bid Request that does not conform substantially to the format of Exhibit "B-2" G may be rejected at the Auction Administration Administrative Agent's sole discretion, and the Auction Administration Administrative Agent shall promptly notify the Borrowers Company of such rejection by telecopier. Each Competitive Bid Request shall in each case refer to this Agreement and specify (w) the Borrower to whom such Advance is to be made, (x) the Type of the Advance, (y) the requested date of such Competitive Advance Loans (which shall be a Business Day) and the aggregate principal amount thereof (which shall not be less than $10,000,000 25,000,000 or greater than the unused Total Commitment portion of the Facility Amount on the requested such date for such Competitive Advance and shall be an integral multiple of $1,000,000), 5,000,000) and (zy) the Interest Period with respect thereto (which may not end after the Termination Datetermination of the Revolving Credit Availability Period). Promptly after its receipt of a Competitive Bid Request that is not rejected as aforesaid, the Auction Administration Administrative Agent shall invite by telecopier (in substantially in the form set forth in Exhibit B-3 H hereto) the Banks to bid, on the terms and conditions of this Agreement, to make Competitive Advances Loans pursuant to such Competitive Bid Request.. Notwithstanding the foregoing, Administrative Agent shall have no obligation to invite any Bank to make a Competitive Bid pursuant to this Section 2.9(a) until such Bank has delivered a properly completed Competitive Bid Administrative Questionnaire to Administrative Agent. (22
(b) Each Bank may, in its sole discretion, make one or more Competitive Bids to the Borrowers Company responsive to each Competitive Bid Request. Each Competitive Bid by a Bank must be received by the Auction Administration Administrative Agent via telecopier, substantially in the form of Exhibit B-4 I hereto, (i) in the case of Eurodollar Advances, not later than 9:00 11:00 a.m., DallasHouston, Texas time, three four Business Days before the requested date specified for a proposed Competitive Advance and (ii) in the case of Fixed Rate Advances, not later than 8:30 a.m., Dallas, Texas time, on the day of a proposed Competitive AdvanceLoan. Competitive Bids that do not conform substantially to the format of Exhibit B-4 I may be rejected by the Auction Administration Administrative Agent after conferring with, and upon the instruction of, the BorrowersCompany, and the Auction Administration Administrative Agent shall notify the non-conforming Bank of such rejection as soon as practicable. Each Competitive Bid shall refer to this Agreement and (x) specify the principal amount (which shall be in a minimum principal amount of $5,000,000 and in an integral multiple of $1,000,000 and which may equal the entire aggregate principal amount of the Competitive Advance Loan requested by the BorrowersCompany) of the Competitive Advance Loan that the Bank is willing to make to the BorrowersCompany, (y) specify the Competitive Bid Rate(s) Rate at which the Bank is prepared to make the Competitive Advance Loan and (z) confirm the Interest Period with respect thereto specified by the Borrowers Company in the its Competitive Bid Request. A Competitive Bid submitted by a Bank pursuant to this paragraph (b) shall be irrevocable.
(c) The Auction Administration Administrative Agent shall promptly shall, by 2:00 p.m. four Business Days before the date specified for a proposed Competitive Loan, notify the Borrowers Company by telecopier of all the Competitive Bids made, the Competitive Bid Rate and the maximum principal amount of each Competitive Advance Loan in respect of which a Competitive Bid was made and the identity of the Bank that made each bid. The Auction Administration Administrative Agent shall send a copy of all Competitive Bids to the Borrowers Company for their its records as soon as practicable after completion of the bidding process set forth in this Section 2.62.9.
(d) The Borrowers Company may in their its sole and absolute discretion, subject only to the provisions of this Section 2.6(d2.9(d), accept or reject any or all of the Competitive Bids Bid referred to in paragraph (c) aboveSection 2.9(c); provided, however, that the aggregate amount of the Competitive Bids so accepted by the Borrowers Company may not exceed the principal amount of the Competitive Advance Loan requested by the BorrowersCompany. The Borrowers Company shall notify the Auction Administration Administrative Agent by telecopier whether and to what extent they have it has decided to accept or reject any or all of the bids referred to in paragraph (c) above, (i) in the case of Eurodollar AdvancesSection 2.9(c), not later than 11:00 a.m., DallasHouston, Texas time, three Business Days before the requested date for a proposed Competitive Advance and (ii) in the case of Fixed Rate Advances, not later than 9:30 a.m., Dallas, Texas time, on the day specified for a proposed Competitive AdvanceLoan; provided, however, that (w) the failure by the Borrowers Company to give such notice shall be deemed to be a rejection of all the bids referred to in paragraph (cSection 2.9(c) above, and (x) the Borrowers shall not accept a bid made at a particular Competitive Bid Rate if the Borrowers have decided to reject a bid made at a lower Competitive Bid Rate, (y) if the Borrowers shall accept bids made at a particular Competitive Bid Rate but shall be restricted by other conditions hereof from borrowing the full principal amount of Competitive Advances in respect of which bids at such Competitive Bid Rate have been made or shall not require the full amount offered thereby, then the Borrowers shall accept a pro rata portion of each bid made at such Competitive Bid Rate based as nearly as possible on the respective principal amounts of Competitive Advances for which such bids were made and (z) no bid shall be accepted for a Competitive Advance Loan unless such Competitive Advance Loan is in a minimum principal amount of $5,000,000 and an integral multiple of $1,000,000. Notwithstanding the foregoing clause (z)foregoing, if it is necessary for the Borrowers to accept a pro rata allocation of the bids Company accepts more than one bid made in response to a Competitive Bid Request (whether pursuant to the events specified in clause (y) above or otherwise) and the available principal amount of Competitive Advances Loans to be allocated among the Banks is not sufficient to enable Competitive Advances Loans to be allocated to each Bank in a minimum principal amount of $5,000,000 and in integral multiples of $1,000,000, then the Borrowers Company shall select the Banks to be allocated such Competitive Advances Loans and shall round allocations up or down to the next higher or lower multiple of $500,000 1,000,000 as it shall deem appropriate. In addition, the Company shall be permitted under the foregoing procedures to accept a bid or bids in a principal amount of less than $5,000,000 (i) in order to enable the Company to accept bids equal to (but not in excess of) the principal amount of the Competitive Loan requested by the Company or (ii) in order to enable the Company to accept all remaining bids, or (23) all remaining bids at a particular Competitive Bid Rate. A notice given by the Borrowers Company pursuant to this paragraph (d) shall be irrevocable.
(e) The Auction Administration Administrative Agent shall promptly notify each bidding Bank whether or not its Competitive Bid has been accepted (and if so, in what amount and at what Competitive Bid Rate) by telecopiertelex or telecopier sent by Administrative Agent, and each successful bidder will thereupon become bound, subject to the other applicable conditions hereof, to make the Competitive Advance Loan in respect of which its bid has been accepted. After completing the notifications referred to in the immediately preceding sentence, the Auction Administration Administrative Agent shall (i) notify the Administrative Agent of each Competitive Bid that has been accepted, the amount thereof and the Competitive Bid Rate therefor and (ii) notify each Bank of the aggregate principal amount of all Competitive Bids accepted.
(f) Upon receipt from the Administrative Agent of the Eurodollar Rate applicable to any Eurodollar Advance to be made by any Bank pursuant to a Competitive Bid that has been accepted by the Borrowers pursuant to Section 2.6(d), the Auction Administration Agent shall notify such Bank of (i) the applicable Eurodollar Rate and (ii) the sum of the applicable Eurodollar Rate plus the Margin bid by such Bank.
(g) No Competitive Bid Request Loan shall be made within five Business Days of the date of any other Competitive Bid RequestLoan, unless the Borrowers Company and the Auction Administration Administrative Agent shall mutually agree otherwise.
(hg) If the Auction Administration Administrative Agent or any of its Affiliates shall at any time have a Commitment hereunder and shall elect to submit a Competitive Bid in its capacity as a Bank, such Bank it shall submit such bid directly to the Borrowers Company one quarter of an hour earlier than the latest time at which the other Banks are required to submit their bids to the Auction Administration Administrative Agent pursuant to paragraph (b) above.
(ih) All notices required by this Section 2.6 2.9 shall be made in accordance with Section 12.10.
(j) Each Bank shall make its portion of each Competitive Advance on the date specified for such Competitive Advance thereof by paying the amount required to the Administrative Agent at the Principal Office in immediately available funds not later than 12:00 noon, Dallas, Texas time, 3.2 and the Competitive Bid Administrative Agent shall Questionnaire most recently placed on file by 2:00 p.m., Dallas, Texas time, credit the amounts so received to the general deposit account of the specified Borrower each Bank with the Administrative Agent or, if Competitive Advances are not made on such date because any condition precedent to an Advance herein specified shall not have been met, return the amounts so received to the respective Banks as soon as practicableAgent.
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Sources: Loan Agreement (Seagull Energy Corp)
Competitive Bid Procedure. (a) In order to request Competitive Bids, the Borrowers Borrower shall hand deliver or telecopy to the Administrative Agent and the Auction Administration Agent a duly completed Competitive Bid Request, to be received by the Administrative Agent and the Auction Administration Agent Request (i) in the case of a Eurodollar AdvancesCompetitive Borrowing, not later than 9:00 10:00 a.m., Dallas, Texas time, four Business Days before the requested proposed date of such Competitive Advance Borrowing and (ii) in the case of a Fixed Rate AdvancesBorrowing, not later than 9:00 10:00 a.m., Dallas, Texas time, one Business Day before the requested proposed date of such Borrowing. A Competitive AdvanceBid Request shall not be made within five Business Days after the date of any previous Competitive Bid Request. No Alternate Base Rate Advance ABR Loan shall be requested in, or, except pursuant to Section 4.4, or made pursuant to, a Competitive Bid Request. A Competitive Bid Request that does not conform substantially to the format of Exhibit "B-2" EXHIBIT D-1 hereto may be rejected at by the Auction Administration Agent's sole discretion, Administrative Agent and the Auction Administration Administrative Agent shall promptly notify the Borrowers Borrower of such rejection by telecopieras promptly as practicable. Each Competitive Bid Request shall in each case refer to this Agreement and specify (wi) whether the Borrower to whom such Advance Borrowing being requested is to be made, a Eurodollar Borrowing or a Fixed Rate Borrowing; (xii) the Type of the Advance, (y) the requested date of such Competitive Advance Borrowing (which shall be a Business Day); (iii) the number and the location of the account to which funds are to be disbursed (which shall be an account that complies with the requirements of Section 2.02(c) hereof); (iv) the aggregate principal amount thereof (of such Borrowing, which shall not be less than a minimum of $10,000,000 or greater than the unused Total Commitment on the requested date for such Competitive Advance 3,000,000 and shall be an integral multiple of $1,000,000), and ; (zv) the Interest Period with respect thereto and (which may not end after vi) whether such Competitive Loan is being made under the Termination Date)Short Term Commitment or under the Long Term Commitment. Promptly after its receipt of a Competitive Bid Request that is not rejected as aforesaidrejected, the Auction Administration Administrative Agent shall invite by telecopier (substantially telecopy in the form set forth in Exhibit B-3 hereto) EXHIBIT D-2 invite the Banks Lenders to bid, on the terms and conditions of this Agreement, bid to make Competitive Advances Loans pursuant to such the Competitive Bid Request. Each Competitive Loan may only be made in an amount equal to or less than (i) the amount by which the Total Commitment exceeds the Total Exposure on such date, (ii) if such Competitive Loan was made under the Short Term Revolving Commitment, the amount by which the Short Term Commitment exceeds the sum of (A) the aggregate outstanding Short Term Revolving Loans, (B) the L/C Exposure attributable to the Short Term Commitment and (C) the aggregate outstanding Competitive Loans attributable to the Short Term Commitment, and (iii) if such Competitive Loan was made under the Long Term Revolving Commitment, the amount by which the Long Term Commitment exceeds the sum of (A) the aggregate outstanding Long Term Revolving Loans, (B) the L/C Exposure attributable to the Long Term Commitment and (C) the aggregate outstanding Competitive Loans attributable to the Long Term Commitment.
(b) Each Bank may, in its sole discretion, Lender may make one or more Competitive Bids to the Borrowers Borrower responsive to each a Competitive Bid Request. Each Competitive Bid by a Bank Lender must be received by the Auction Administration Administrative Agent via telecopier, substantially in the form of Exhibit B-4 heretoby telecopy, (i) in the case of a Eurodollar AdvancesCompetitive Borrowing, not later than 9:00 9:30 a.m., Dallas, Texas time, three Business Days before the requested proposed date for a proposed of such Competitive Advance Borrowing, and (ii) in the case of a Fixed Rate AdvancesBorrowing, not later than 8:30 9:30 a.m., Dallas, Texas time, on the day proposed date of a proposed such Competitive AdvanceBorrowing. Competitive Bids that do not conform substantially to the format of Exhibit B-4 EXHIBIT D-3 may be rejected by the Auction Administration Agent after conferring with, and upon the instruction of, the BorrowersAdministrative Agent, and the Auction Administration Administrative Agent shall notify the non-conforming Bank of such rejection applicable Lender as soon promptly as practicable. Each Competitive Bid shall refer to this Agreement and specify (x) specify the principal amount (which shall be in a minimum principal amount of $5,000,000 3,000,000 and in an integral multiple of $1,000,000 and which may equal the entire principal amount of the Competitive Advance Borrowing requested by the BorrowersBorrower) of the Competitive Advance Loan or Loans that the Bank Lender is willing to make to the Borrowersmake, (y) specify the Competitive Bid Rate(s) Rate or Rates at which the Bank Lender is prepared to make the Competitive Advance such Loan or Loans and (z) confirm the Interest Period with respect thereto specified by applicable to such Loan or Loans and the Borrowers in the Competitive Bid Request. A Competitive Bid submitted by a Bank pursuant to this paragraph (b) shall be irrevocablelast day thereof.
(c) The Auction Administration Administrative Agent shall promptly notify the Borrowers Borrower by telecopier telecopy of all the Competitive Bids made, the Competitive Bid Rate and the principal amount of each Competitive Advance Loan in respect of which a Competitive Bid was shall have been made and the identity of the Bank Lender that shall have made each bid. The Auction Administration Agent shall send a copy of all Competitive Bids to the Borrowers for their records as soon as practicable after completion of the bidding process set forth in this Section 2.6.
(d) The Borrowers may in their sole and absolute discretionBorrower may, subject only to the provisions of this Section 2.6(dparagraph (d), accept or reject any or all of the Competitive Bids referred to in paragraph (c) above; provided, however, that the aggregate amount of the Competitive Bids so accepted by the Borrowers may not exceed the principal amount of the Competitive Advance requested by the BorrowersBid. The Borrowers Borrower shall notify the Auction Administration Administrative Agent by telecopier telephone, confirmed by telecopy in the form of a Competitive Bid Accept/Reject Letter, whether and to what extent they have it has decided to accept or reject any or all of the bids referred to in paragraph (c) aboveeach Competitive Bid, (ix) in the case of a Eurodollar AdvancesCompetitive Borrowing, not later than 11:00 10:30 a.m., Dallas, Texas time, three Business Days before the requested date for a of the proposed Competitive Advance Borrowing, and (iiy) in the case of a Fixed Rate AdvancesBorrowing, not later than 9:30 10:30 a.m., Dallas, Texas time, on the day specified for a proposed date of the Competitive AdvanceBorrowing; providedPROVIDED, howeverHOWEVER, that (wi) the failure by of the Borrowers Borrower to give such notice shall be deemed to be a rejection of all the bids referred to in paragraph (c) aboveeach Competitive Bid, (xii) the Borrowers Borrower shall not accept a bid Competitive Bid made at a particular Competitive Bid Rate if the Borrowers have Borrower has decided to reject a bid Competitive Bid made at a lower Competitive Bid Rate, (yiii) if the Borrowers aggregate amount of the Competitive Bids accepted by the Borrower shall accept bids made at a particular Competitive Bid Rate but shall be restricted by other conditions hereof from borrowing not exceed the full principal amount of Competitive Advances in respect of which bids at such Competitive Bid Rate have been made or shall not require the full amount offered thereby, then the Borrowers shall accept a pro rata portion of each bid made at such Competitive Bid Rate based as nearly as possible on the respective principal amounts of Competitive Advances for which such bids were made and (z) no bid shall be accepted for a Competitive Advance unless such Competitive Advance is in a minimum principal amount of $5,000,000 and an integral multiple of $1,000,000. Notwithstanding the foregoing clause (z), if it is necessary for the Borrowers to accept a pro rata allocation of the bids made in response to a Competitive Bid Request (whether pursuant to the events specified in clause (y) above or otherwise) and the available principal amount of Competitive Advances to be allocated among the Banks is not sufficient to enable Competitive Advances to be allocated to each Bank in a minimum principal amount of $5,000,000 and in integral multiples of $1,000,000, then the Borrowers shall select the Banks to be allocated such Competitive Advances and shall round allocations up or down to the next higher or lower multiple of $500,000 as it shall deem appropriate. A notice given by the Borrowers pursuant to this paragraph (d) shall be irrevocable.
(e) The Auction Administration Agent shall promptly notify each bidding Bank whether or not its Competitive Bid has been accepted (and if so, in what amount and at what Competitive Bid Rate) by telecopier, and each successful bidder will thereupon become bound, subject to the other applicable conditions hereof, to make the Competitive Advance in respect of which its bid has been accepted. After completing the notifications referred to in the immediately preceding sentence, the Auction Administration Agent shall (i) notify the Administrative Agent of each Competitive Bid that has been accepted, the amount thereof and the Competitive Bid Rate therefor and (ii) notify each Bank of the aggregate principal amount of all Competitive Bids accepted.
(f) Upon receipt from the Administrative Agent of the Eurodollar Rate applicable to any Eurodollar Advance to be made by any Bank pursuant to a Competitive Bid that has been accepted by the Borrowers pursuant to Section 2.6(d), the Auction Administration Agent shall notify such Bank of (i) the applicable Eurodollar Rate and (ii) the sum of the applicable Eurodollar Rate plus the Margin bid by such Bank.
(g) No Competitive Bid Request shall be made within five Business Days of the date of any other Competitive Bid Request, unless the Borrowers and the Auction Administration Agent shall mutually agree otherwise.
(h) If the Auction Administration Agent or any of its Affiliates shall at any time have a Commitment hereunder and shall elect to submit a Competitive Bid in its capacity as a Bank, such Bank shall submit such bid directly to the Borrowers one quarter of an hour earlier than the latest time at which the other Banks are required to submit their bids to the Auction Administration Agent pursuant to paragraph (b) above.
(i) All notices required by this Section 2.6 shall be made in accordance with Section 12.10.
(j) Each Bank shall make its portion of each Competitive Advance on the date specified for such Competitive Advance thereof by paying the amount required to the Administrative Agent at the Principal Office in immediately available funds not later than 12:00 noon, Dallas, Texas time, and the Administrative Agent shall by 2:00 p.m., Dallas, Texas time, credit the amounts so received to the general deposit account of the specified Borrower with the Administrative Agent or, if Competitive Advances are not made on such date because any condition precedent to an Advance herein specified shall not have been met, return the amounts so received to the respective Banks as soon as practicable.,
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