Competitive. Bid Loans shall constitute Revolving Credit Loans for all purposes of this Agreement, except that Competitive Bid Loans shall not constitute usage of the Aggregate Commitment for purposes of Section 1.7 hereof. Each Bank may make such Competitive Bid Loans to the Company, subject to the terms and conditions hereof, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of Competitive Bid Loans made against the Aggregate Revolver Commitment shall reduce each Bank's Revolver Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. The procedure for making Competitive Bid Loans shall be as follows: (a) The Company may make requests for bids from the Banks to make Competitive Bid Loans ("Competitive Bids") not later than 9:00 a.m., Milwaukee time, on the proposed Borrowing Date for one or more Competitive Bid Loans. Each such request shall be given directly to each of the Banks, shall be given in writing (which may be a facsimile transmission) signed by the Company, and shall specify (i) the proposed Borrowing Date, which shall be a Business Day, (ii) the aggregate amount of the requested Competitive Bid Loans, which shall not be less than $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000), (iii) the interest period for each Competitive Bid Loan ("Loan Period"), which shall commence on the applicable Borrowing Date and end on a specified date thereafter not earlier than five days nor later than 30 days from such Borrowing Date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day of each such Loan Period, and (iv) if more than one Loan Period is so specified, the principal amount allocable to each such Loan Period. (b) Each Bank in its sole discretion may (but is not obligated to) submit one or more Competitive Bids to the Company not later than 11:00 a.m., Milwaukee time, on the proposed Borrowing Date specified in such request for Competitive Bids (such 11:00 a.m. time being herein called the "Submission Deadline"), by facsimile or in writing, and thereby irrevocably offer to make all or any part (any such part referred to as a "Portion") of any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids may be delivered by any Bank. (c) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed Borrowing Date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent in the form of Part 3 of Exhibit 2.2 hereto on each Business Day on which there is any change in the aggregate outstanding principal amount of Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on such Business Day. (d) If the Company accepts a Portion of a proposed Competitive Bid Loan for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period and no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make such Competitive Bid Loan (or Portions thereof) in an aggregate principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000, the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banks. (e) Not later than 1:30 p.m., Milwaukee time, on the relevant Borrowing Date, each Bank whose Competitive Bid was accepted by the Company shall make available to the Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant Borrowing Date the proceeds of such Competitive Bid Loans, in immediately available funds. m. Section 5.1 of the Credit Agreement is hereby amended by adding a new subparagraph (h) at the end of such section, reading in its entirety as follows:
Appears in 1 contract
Competitive. Bid Loans shall constitute Procedure -------------------------
(a) The Borrower may, at any time and from time to time during the Revolving Credit Loans for all purposes Commitment Period, provided that no Event of this AgreementDefault shall have occurred and then be continuing, except that request Competitive Bids by delivering by hand or telecopy to the Administrative Agent a duly completed Competitive Bid Loans shall Request. A request for Competitive Bids that does not constitute usage of the Aggregate Commitment for purposes of Section 1.7 hereof. Each Bank may make such Competitive Bid Loans conform substantially to the Company, subject to format of Exhibit I may be rejected in the terms and conditions hereof, in such amounts as such Bank, in its Administrative Agent's sole discretion, desires to make to and the CompanyAdministrative Agent shall promptly notify the Borrower of such rejection by telecopy. Notwithstanding any contrary provision of Section 1.1, Each Competitive Bid Request shall specify (i) the aggregate outstanding amount of Competitive Bid Loans made against upon which the Aggregate Revolver Commitment Borrower desires Competitive Bids under this Section 2.6, which amount shall reduce each Bank's Revolver Commitment pro rata not be in accordance with its respective Percentage Interestexcess of the Available Amount, regardless of which Bank makes (ii) a proposed Borrowing Date for such Competitive Bid Loans. The procedure for making , which date shall not be earlier than one Business Days after the date of delivery to the Administrative Agent of such Competitive Bid Loans Request, provided that any Competitive Bid Request delivered to the Administrative Agent after 11:00 a.m., on any Business Day shall be deemed to have been given on the immediately succeeding Business Day, (iii) the proposed Competitive Interest Period(s) requested, provided that the number of different Competitive Interest Periods requested in a single Competitive Bid Request shall not exceed three, and (iv) in the event that more than one Competitive Interest Period shall have been so requested, the amount of the requested Competitive Bid Loan (in no event less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof) in respect of each such Competitive Interest Period. Promptly after its receipt of each Competitive Bid Request that is not rejected as follows:aforesaid, the Administrative Agent shall send to each Lender an Invitation to Bid, appropriately completed by the Administrative Agent with reference to such Competitive Bid Request.
(ab) The Company may Each Lender may, in its sole and absolute discretion, make requests for bids from one or more Competitive Bids to the Banks Borrower in response to make each Invitation to Bid. Each Competitive Bid Loans ("Competitive Bids") by a Lender must be received by the Administrative Agent not later than 9:00 10:00 a.m., Milwaukee timeon such proposed Borrowing Date. Competitive Bids that do not conform substantially to the format of Exhibit K may be rejected by the Administrative Agent after conferring with, and upon the instruction of, the Borrower, and the Administrative Agent shall notify the Lender making such nonconforming bid of such rejection as soon as practicable. Each Competitive Bid shall be irrevocable and, with respect to each Competitive Interest Period requested by the Borrower, shall specify (i) the Competitive Interest Period offered by such Lender, and (ii) with respect to each such Competitive Interest Period offered by such Lender, the Competitive Bid Rate and the amount (which amount (A) shall not be less than $5,000,000, or a whole multiple of $1,000,000 in excess thereof, and (B) may not exceed the Competitive Bid Loan requested by the Borrower in respect of such Competitive Interest Period) of the Competitive Bid Loan with respect thereto. If any Lender shall elect not to make a Competitive Bid, such Lender shall so notify the Administrative Agent by telecopy not later than 10:00 a.m., on such proposed Borrowing Date therefor, provided, however, that the failure by any Lender to give any such notice shall not obligate such Lender to make any Competitive Bid Loan in connection with the relevant Competitive Bid Request.
(c) With respect to each Invitation to Bid sent to the Lenders, the Administrative Agent shall (i) promptly notify the Borrower by telecopy of the amount of each Competitive Bid Loan offered thereby, and the Competitive Interest Period and Competitive Bid Rate applicable thereto, and the identity of the Lender that made such offer, and (ii) send a list of all Competitive Bids to the Borrower for its records as soon as practicable after completion of the bidding process.
(d) The Borrower may in its sole and absolute discretion, subject only to the provisions of this Section 2.6(d), accept or reject any Competitive Bid made in accordance with the procedures set forth in this Section 2.6, and the Borrower shall notify the Administrative Agent by telephone, confirmed by telecopy in the form of a Competitive Bid Accept/Reject Letter, whether and to what extent it has decided to accept or reject any or all of such Competitive Bids, not later than 11:00 a.m., on the proposed Borrowing Date for therefor, provided, however, that the failure by the Borrower to give such notice shall be conclusively deemed to be a rejection of all such Competitive Bids. In connection with each acceptance of one or more Competitive Bid Loans. Each such request shall be given directly to each of the Banks, shall be given in writing (which may be a facsimile transmission) signed Bids by the Company, and shall specify Borrower:
(i) the proposed Borrowing Date, which Borrower shall be not accept a Business Day, Competitive Bid made at a particular Competitive Bid Rate if the Borrower has decided to reject another Competitive Bid made at a lower Competitive Bid Rate and having the same Competitive Interest Period as such Competitive Bid,
(ii) the aggregate amount of the requested Competitive Bids accepted by the Borrower shall not exceed the aggregate principal amount of the Competitive Bid LoansLoans specified in the related Competitive Bid Request,
(iii) if the Borrower shall desire to accept a Competitive Bid made at a particular Competitive Bid Rate and Competitive Interest Period, which it must accept all other Competitive Bids at such Competitive Bid Rate and Competitive Interest Period, provided, however, that if the acceptance of all such other Competitive Bids would cause the aggregate amount of all accepted Competitive Bids to exceed the aggregate principal amount of the Competitive Bid Loans specified in the related Competitive Bid Request, then such acceptance shall not be less than made pro rata in accordance with the amount of each such Competitive Bid at such Competitive Bid Rate and Competitive Interest Period, and
(iv) except pursuant to Section 2.6(d)(iii), no Competitive Bid shall be accepted unless the Competitive Bid Loan with respect thereto shall be in (A) a minimum principal amount of $5,000,000, or a whole multiple of $1,000,000 or, for amounts in excess thereof, or (B) if less, an integral multiple aggregate principal amount equal to the excess of $100,000), the Aggregate Revolving Credit Commitment Amount over the Aggregate Credit Exposure.
(iiie) the interest period for The Administrative Agent shall promptly notify each bidding Lender whether or not each Competitive Bid Loan ("Loan Period")of such Lender has been accepted by telecopy sent by the Administrative Agent, which shall commence and, if such Competitive Bid has been accepted by the Borrower, in whole or in part, such bidding Lender shall, after its receipt of such notice and no later than 2:00 p.m., on the applicable related Borrowing Date Date, make immediately available funds available to the Administrative Agent at the address therefor set forth in Section 11.2, in the amount in which each such Competitive Bid of such Lender was accepted by the Borrower, and end the amount so made available to the Administrative Agent on a specified date thereafter not earlier than five days nor later than 30 days from such Borrowing Date will then, subject to the satisfaction of the terms and conditions of this Agreement, as determined by the Administrative Agent, be promptly made available on such Borrowing Date to the Borrower by the Administrative Agent at such office by crediting the account of the Borrower on the books of such office (up or elsewhere as the Borrower may from time to three (3time instruct the Administrative Agent in writing) with the aggregate of said amount received by the Administrative Agent. Notwithstanding anything to the contrary contained herein, no Lender shall be obligated to make a Competitive Bid Loan Periods may be requested pursuant to each if immediately after making such Competitive Bid), and the last day of each such Loan Period, and (iv) if more than one Loan Period is so specifiedBid Loan, the principal amount allocable to each such Loan PeriodAggregate Credit Exposure would exceed the Aggregate Revolving Credit Commitment Amount.
(bf) Each Bank in its sole discretion may (but is A Competitive Bid Request shall not obligated to) submit be made within four Business Days after the date of any previous Competitive Bid Request, unless the Borrower has accepted one or more Competitive Bids pursuant to the Company not later than 11:00 a.m., Milwaukee time, on the proposed Borrowing Date specified in such request for Competitive Bids (such 11:00 a.m. time being herein called the "Submission Deadline"), by facsimile or in writing, and thereby irrevocably offer to make all or any part (any such part referred to as a "Portion") of any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified therein, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids may be delivered by any BankRequest made within such five Business Days.
(cg) If the Administrative Agent shall elect to submit a Competitive Bid in its capacity as a Lender, it shall submit such bid directly to the Borrower fifteen minutes earlier than the latest time at which the other Lenders are required to submit their bids to the Administrative Agent pursuant to Section 2.6(b).
(h) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed Borrowing Date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids Loans made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids each Lender shall be deemed to have been rejected evidenced by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice promissory note of the CompanyBorrower, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice to the Agent substantially in the form of Part 3 Exhibit B-3, payable to the order of Exhibit 2.2 hereto on each Business Day on which there is any change in such Lender, and dated the aggregate outstanding principal amount of Effective Date (each, as indorsed or modified from time to time, a "Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on such Business Day.
(d) If the Company accepts a Portion of a proposed Note"). Each -------------------- Competitive Bid Loan for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount due and payable on the last day of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period and no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make such Competitive Bid Loan (or Portions thereof) in an aggregate principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000, the nearest multiple of $100,000, or select the Competitive Bid of only one of such BanksInterest Period applicable thereto.
(e) Not later than 1:30 p.m., Milwaukee time, on the relevant Borrowing Date, each Bank whose Competitive Bid was accepted by the Company shall make available to the Agent, in immediately available funds, the proceeds of such Bank's Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant Borrowing Date the proceeds of such Competitive Bid Loans, in immediately available funds. m.
Section 5.1 of the Credit Agreement is hereby amended by adding a new subparagraph (h) at the end of such section, reading in its entirety as follows:
Appears in 1 contract
Sources: Credit Agreement (Kohls Corporation)
Competitive. Bid Loans shall constitute Advances During the Revolving Credit Loans Period, and Procedure for all purposes of this Agreement, except that Competitive Bid Loans shall not constitute usage of the Aggregate Commitment for purposes of Section 1.7 hereof. Each Bank may make such Competitive Bid Loans to the Company, subject Borrowings.
(a) Subject to the terms and conditions hereofof this Agreement, in such amounts as such Bank, in its sole discretion, desires to make to each Lender severally agrees that the Company. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of Borrower may effect Competitive Bid Loans made against Borrowings under this section 2.5 from time to time on any Business Day dur- ing the Aggregate Revolver Commitment Revolving Credit Period in the manner set forth below, provided, however, that at no time shall reduce each Bank's Revolver Commitment pro rata in accordance with its respective Percentage Interest, regardless the outstanding principal balance of which Bank makes such Competitive Com- petitive Bid Loans. The procedure for making Competitive Bid Loans shall be as follows:
(a) The Company may make requests for bids from Advances outstanding hereunder exceed the Banks to make Competitive Bid Loans ("Competitive Bids") not later than 9:00 a.m., Milwaukee time, on the proposed Borrowing Date for one or more Competitive Bid Loans. Each such request shall be given directly to each lesser of the Banks, shall be given in writing (which may be a facsimile transmission) signed by the Company, and shall specify (i) the proposed Borrowing DateCompetitive Bid Ceiling, which shall be a Business Day, and (ii) the Aggregate Commitments less the outstanding principal balance of all Conventional Advances:
(i) The Borrower may request a Competitive Bid Borrowing under this section 2.5 during the Revolving Credit Period by giving to the Agent, not later than 10:00 a.m. at least three Business Days prior to the date of the proposed Competitive Bid Borrowing, a Competitive Bid Borrowing Request specifying the proposed date and aggregate amount of the requested Competitive Bid Loans, (which shall not be less than $1,000,000 or, for amounts in excess thereof, an integral 5,000,000 or such amount plus a whole multiple of $100,000), (iii) of the interest period for each proposed Competitive Bid Loan Borrowing, the proposed Interest Period for the Competitive Bid Advances to be made as part of such Competitive Bid Borrowing (which Interest Period shall not be later than the Revolving Credit Termination Date and shall otherwise comply with the applicable provisions of the definition of "Loan Interest Period"), which and such other terms to be applicable to such Competitive Bid Borrowing as the Borrower may specify. The Agent shall commence on the applicable Borrowing Date and end on a specified date thereafter not earlier than five days nor later than 30 days from such Borrowing Date promptly notify (up by telephone or otherwise, to three (3be promptly confirmed by telecopy or other writing) Loan Periods may be requested pursuant to each Lender of each Competitive Bid), Bid Borrowing Request received by it and the last day of each terms contained in such Loan Period, and (iv) if more than one Loan Period is so specified, the principal amount allocable to each such Loan PeriodCompetitive Bid Borrowing Request.
(bii) Each Bank Lender may, if, in its sole discretion, it elects so to do, irrevocably offer to make one or more Competitive Bid Advances to the Borrower as part of such proposed Competitive Bid Borrowing at a rate or rates of interest specified by such Lender in its sole discretion, by notifying (by telephone or otherwise, to be promptly confirmed by telecopy or other writing) the Agent, before 10:00 a.m. two Business Days before the Borrowing Date of such proposed Competitive Bid Borrowing of the minimum amount and maximum amount of each Competitive Bid Advance which such Lender would be willing to make as part of such proposed Competitive Bid Borrowing (which amounts may, subject to the proviso to the first sentence of this Section 2.5, exceed such Lender's Commitment), the rate or rates of interest therefor and such Lender's applicable Lending Office with respect to such Competitive Bid Advance. The Agent shall notify the Borrower of all such offers before 10:30 a.m. two Business Days before such proposed Borrowing Date, provided that if BNY in its ca- pacity as a Lender shall in its sole discretion may (but is not obligated to) submit one or more Competitive Bids elect to make any such offer, it shall notify the Company not later Borrower of such offer before 9:30 a.m. two Business Days before such proposed Borrowing Date. If any Lender other than 11:00 BNY shall fail to notify the Agent before 10:00 a.m., Milwaukee time, on and if BNY in its capacity as a Lender shall fail to notify the Borrower before 9:30 a.m. two Business Days before the proposed Borrowing Date specified in such request for Competitive Bids (such 11:00 a.m. time being herein called the "Submission Deadline")Date, by facsimile or in writing, and thereby irrevocably offer that it elects to make all or any part (any such part referred to as a "Portion") of any Competitive Bid Loan described in the relevant request for Competitive Bids at a fixed rate of interest per annum (each a "Bid Rate") specified thereinan offer, without reference to the LIBOR Rate or other basis for interest rates, in an aggregate principal amount of not less than $1,000,000 and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids may be delivered by any Bank.
(c) The Company shall, in its sole discretion but subject to paragraph (d) below, irrevocably accept or reject any such Competitive Bid (or any Portion thereof) not later than 12:00 noon on the proposed Borrowing Date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids Lender shall be deemed to have been rejected by the Company. The Company's written acceptance of elected not to make such an offer and such Lender shall not be obligated to, and shall not, make any Competitive Bid shall constitute a borrowing notice Advance as part of the Company, and shall specify the amount, maturity date and Bid Rate for each such Competitive Bid LoanBorrowing. Any offer submitted after the time required above shall be disregarded by the Agent unless such offer is submitted to correct a manifest error in a prior offer.
(iii) The Company will give written Borrower shall, before 12:00 noon two Business Days before the date of such proposed Competitive Bid Borrowing, either
(A) cancel such Competitive Bid Borrowing Request by notice to the Agent to that effect, or
(B) in its sole discretion, irrevocably accept one or more of the form offers made by any Lender or Lenders pursuant to (ii) above, in ascending order of Part 3 the rates offered therefor, by giving notice to the Agent of Exhibit 2.2 hereto the amount of each Competitive Bid Advance (which amount shall be equal to or greater than the minimum amount, and equal to or less than the maximum amount, notified to the Borrower by the Agent on behalf of such Lender for such Competitive Bid Advance pursuant to (ii) above) to be made by each Business Day on which there is Lender as part of such Competitive Bid Borrowing, and reject any change in remaining offers made by Lenders pursuant to (ii) above, by giving the Agent notice to that effect, provided, however, that the aggregate outstanding amount of such offers accepted by the Borrower shall be equal at least to $5,000,000. If offers for Com- petitive Bid Advances at the same interest rate are made by two or more Lenders for a greater aggregate minimum principal amount than the amount in respect of which offers for Competitive Bid Advances are accepted by the Borrower at such interest rate, the principal amount of Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on Advances accepted at such Business Day.
(d) If the Company accepts a Portion of a proposed Competitive Bid Loan for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion interest rate shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If allocated by the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period and no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all Borrower among such Competitive Bids Lenders as nearly as possible in proportion to the respective minimum principal amounts of offered by such Banks' respective Competitive Bids with identical Bid Rates for Lenders. No such Loan Period, provided, that if the amount of Competitive Bid Loans to Lender shall be so allocated is not sufficient to enable each such Bank obligated to make such Competitive Bid Advance in a principal amount less than the minimum amount offered by such Lender without consenting to such lesser amount. If any Lender declines to make a Competitive Bid Advance at such lesser amount, the Borrower shall be entitled in its sole discretion to determine which of such offers at the same interest rate it shall accept.
(iv) If the Borrower notifies the Agent that a Competitive Bid Borrowing Request is cancelled pursuant to (iii)(A) above, the Agent shall give prompt notice (by telephone or otherwise, to be promptly confirmed by telecopy or other writing) thereof to the Lenders and such Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any Lender or Lenders pursuant to clause (iii)(B) above, the Agent shall, as promptly as practicable on the second Business Day before such proposed Borrowing Date, notify (A) each Lender that has made an offer as described in clause (ii) above, of the date and aggregate amount of such Competitive Bid Borrowing and whether any offer or offers made by such Lender pursuant to clause (ii) above have been accepted by the Borrower and (B) each Lender that is to make a Competitive Bid Advance as part of such Competitive Bid Borrowing (a "Participating Lender" with respect to such Competitive Bid Borrowing), of the amount of each Loan to be made by such Lender as part of such Competitive Bid Borrowing, together with a specification of the interest rate and Interest Payment Date or Dates in respect of each such Competitive Bid Advance. Each such Participating Lender shall, before 11:30 A.M. on the date of such Competitive Bid Borrowing make available for the account of its applicable Lending Office to the Agent at its address specified in section 11.2 such Lender's portion of such Competitive Bid Borrowing, in funds im- mediately available to the Agent at such office. Upon satisfaction of the applicable terms and conditions of this Agreement and after receipt by the Agent of such amount from each such Participating Lender, the Agent will make such amount available on such date to the Borrower at the office of the Agent specified in section 11.2 by crediting the account of the Borrower on the books of such office with the aggregate of such amounts, in like funds as received by the Agent. After each Competitive Bid Borrowing, if requested by any Lender, the Agent shall within a reasonable time furnish to such Lender such information in respect of such Competitive Bid Borrowing as such Lender shall reasonably request. Unless the Agent shall have received prior notice from a Participating Lender (by telephone or Portions thereofotherwise, such notice to be promptly confirmed by telecopy or other writing) that such Participating Lender will not make available such Participating Lender's Competitive Bid Advance, the Agent may assume that such Participating Lender has made such Participating Lender's portion of such Competitive Bid Borrowing available to the Agent on such Borrowing Date in an aggregate accordance with this section, and the Agent may, in reliance upon such assumption, make available to the Borrower on such Borrowing Date a corresponding amount. If and to the extent such Participating Lender shall not have made such portion available to the Agent, such Participating Lender and the Borrower severally agree to pay to the Agent forthwith on demand such corresponding amount with interest thereon for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Agent at a rate per annum equal to, in the case of the Borrower, the rate of interest for such Competitive Bid Advance accepted by the Borrower in its notice to the Agent under Section 2.5(a)(iii)(B), and, in the case of such Lender, the Federal Funds Rate in effect on such day (as determined by the Agent). Such payment by the Borrower, however, shall be without prejudice to its rights against such Participating Lender. If such Participating Lender shall pay to the Agent such corresponding amount, such amount so paid shall constitute such Lender's Competitive Bid Advance as a part of such Competitive Bid Advances for purposes of this Agreement, which Competitive Bid Advance shall be deemed to have been made by such Participating Lender on the Borrowing Date applicable thereto, but without prejudice to the Borrower's rights against such Participating Lender.
(b) Within the limits and on the conditions set forth in this section 2.5, the Borrower may from time to time borrow under this section 2.5, repay pursuant to clause (c) below, and reborrow under this section 2.5.
(c) The Borrower shall repay to the Agent for the account of each Participating Lender which has made a Competitive Bid Advance on the last day of the Interest Period for such Competitive Bid Advance (such Interest Period being that specified by the Borrower in the related Com- petitive Bid Borrowing Request delivered pursuant to (a)(i), above) the then unpaid principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the such Competitive Bid Loans Advance.
(or Portions thereofd) allocated to such Bank or Banks as The Borrower shall pay interest on the Company shall select as necessary to a minimum unpaid principal balance of $1,000,000 and, if greater than $1,000,000, the nearest multiple of $100,000, or select the each Competitive Bid of only one Advance from the date of such BanksCompetitive Bid Advance to the date the principal amount of such Competitive Bid Advance is repaid in full, at the rate of interest for such Competitive Bid Advance specified by the Participating Lender making such Competitive Bid Advance in its notice with respect thereto delivered pursuant to (a)(ii) above payable on the Interest Payment Date specified by the Borrower for such Competitive Bid Advance in the related Competitive Bid Borrowing Request delivered pur- suant to (a)(i), above.
(e) Not later than 1:30 p.m., Milwaukee time, on the relevant Borrowing Date, each Bank whose Each Competitive Bid was accepted by Advance shall be subject to all of the Company shall make available to the Agentprovisions of this Agreement generally, in immediately available fundsprovided, the proceeds of such Bank's however, that a Competitive Bid Loan(s). Upon fulfillment Advance shall not reduce a Lender's obligation to fund its Commitment Percentage of any ABR Advance or Eurodollar Advance.
(f) The provisions of this Section 2.5 shall be applicable only if as of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant Borrowing Date the proceeds date of such a Competitive Bid Loans, in immediately available funds. m.Borrowing Request there is more than one Lender.
Section 5.1 (g) The Borrower shall pay to Agent for its own account a fee of the Credit Agreement is hereby amended by adding a new subparagraph (h) $400 at the end of such section, reading in its entirety as follows:time each Competitive Bid Borrowing Request is made.
Appears in 1 contract
Competitive. Bid Loans Procedure -------------------------
1. The Borrower may, provided that no Default shall constitute have occurred and be continuing, request Competitive Bids during the Revolving Credit Loans Commitment Period by delivering by hand or telecopy to the Administrative Agent a duly completed Competitive Bid Request not later than 1:00 p.m. three Business Days prior to the proposed Borrowing Date therefor, in the case of Competitive Bid Index Rate Loans, and not later than 1:00 p.m. two Business Days prior to the proposed Borrowing Date therefor in all other cases. A request for all purposes Competitive Bids that does not conform substantially to the format of Exhibit I may be rejected in the Administrative Agent's sole discretion, and the Administrative Agent shall promptly notify the Borrower of such rejection by telecopy. Each Competitive Bid Request shall specify a. the amount of each Competitive Bid Loan requested and, if applicable, its nature as a Competitive Bid Index Rate Loan, b. the proposed Borrowing Date for each such Competitive Bid Loan, and c. the Competitive Interest Period with respect to each such Competitive Bid Loan, provided that the number of different Competitive Interest Periods in a single Competitive Bid Request shall not exceed four. Promptly after its receipt of each Competitive Bid Request that is not rejected as aforesaid, the Administrative Agent shall invite by telecopy (in the form of Exhibit J) the Lenders to bid, on the terms and conditions of this Agreement, except that Competitive Bid Loans shall not constitute usage of the Aggregate Commitment for purposes of Section 1.7 hereof. Each Bank may make such Competitive Bid Loans to the Company, subject to the terms and conditions hereof, in such amounts as such Bank, in its sole discretion, desires to make to the Company. Notwithstanding any contrary provision of Section 1.1, the aggregate outstanding amount of Competitive Bid Loans made against the Aggregate Revolver Commitment shall reduce each Bank's Revolver Commitment pro rata in accordance with its respective Percentage Interest, regardless of which Bank makes such Competitive Bid Loans. The procedure for making Competitive Bid Loans shall be as follows:
(a) The Company may make requests for bids from the Banks to make Competitive Bid Loans ("Competitive Bids") not later than 9:00 a.m., Milwaukee time, on the proposed Borrowing Date for one or more pursuant to such Competitive Bid LoansRequest.
2. Each such request shall be given directly to each of the BanksLender may, shall be given in writing (which may be a facsimile transmission) signed by the Company, and shall specify (i) the proposed Borrowing Date, which shall be a Business Day, (ii) the aggregate amount of the requested Competitive Bid Loans, which shall not be less than $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000), (iii) the interest period for each Competitive Bid Loan ("Loan Period"), which shall commence on the applicable Borrowing Date and end on a specified date thereafter not earlier than five days nor later than 30 days from such Borrowing Date (up to three (3) Loan Periods may be requested pursuant to each Competitive Bid), and the last day of each such Loan Period, and (iv) if more than one Loan Period is so specified, the principal amount allocable to each such Loan Period.
(b) Each Bank in its sole discretion may (but is not obligated to) submit and absolute discretion, make one or more Competitive Bids to the Company Borrower in response to a Competitive Bid Request. Each Competitive Bid by a Lender must be received by the Administrative Agent not later than 11:00 10:00 a.m., Milwaukee time, on two Business Days prior to the proposed requested Borrowing Date specified in such request for the case of a Competitive Bid Index Rate Loan and not later than 10:00 a.m. one Business Day prior to the requested Borrowing Date in all other cases. Bids (such 11:00 a.m. time being herein called to make Competitive Bid Loans that do not conform substantially to the "Submission Deadline"), format of Exhibit K shall be rejected by facsimile or in writingthe Administrative Agent after conferring with, and thereby irrevocably offer upon the instruction of, the Borrower, and the Administrative Agent shall notify the Lender making such nonconforming bid of such rejection as soon as practicable. Each Competitive Bid shall be irrevocable and shall specify a. the amount (which (1) shall be in a minimum principal amount of $2,000,000, or a whole multiple of $1,000,000 in excess thereof, and (2) may equal the entire principal amount requested by the Borrower) of such Competitive Bid Loan, b. whether the Competitive Bid Loan that the Lender is willing to make is to be a Competitive Bid Index Rate Loan, c. the Competitive Bid Rate with respect to such Competitive Bid Loan, and d. the Competitive Interest Period with respect to such Competitive Bid Loan and the last day thereof. If any Lender shall elect not to make a Competitive Bid, such Lender shall so notify the Administrative Agent by telecopy not later than 10:00 a.m., two Business Days prior to the requested Borrowing Date in the case of a Competitive Bid Index Rate Loan and not later than 10:00 a.m. one Business Day prior to the requested Borrowing Date in all or other cases, provided that the failure by any part (Lender to give any such part referred notice shall not obligate such Lender to as a "Portion") of make any Competitive Bid Loan described in connection with the relevant Competitive Bid Request.
3. With respect to each Competitive Bid Request, the Administrative Agent shall (i) promptly notify the Borrower by telecopy of each Competitive Bid made, the amount of each Competitive Bid Loan offered thereby and its nature, if applicable, as a Competitive Bid Index Rate Loan, the Competitive Bid Rate applicable thereto, and the identity of the Lender that made such Competitive Bid, and (ii) send a list of all Competitive Bids to the Borrower for its records as soon as practicable after completion of the bidding process.
4. The Borrower may in its sole and absolute discretion, subject only to the provisions of this Section 2.6(d), accept or reject any Competitive Bid made in accordance with the procedures set forth in this Section 2.6, and the Borrower shall notify the Administrative Agent by telephone, confirmed by telecopy in the relevant request for form of a Competitive Bid Accept/Reject Letter, whether and to what extent it has decided to accept or reject any or all of such Competitive Bids, not later than 12:00 noon, two Business Days prior to the requested Borrowing Date in the case of a Competitive Bid Index Rate Loan and not later than 12:00 noon, one Business Day prior to the requested Borrowing Date in all other cases, provided, however, that the failure by the Borrower to give such notice shall be deemed to be a rejection of all such Competitive Bids. In connection with each acceptance of one or more Competitive Bids by the Borrower:
a. the Borrower shall not accept a Competitive Bid made at a particular Competitive Bid Rate if the Borrower has decided to reject a Competitive Bid made at a lower Competitive Bid Rate,
b. the aggregate amount of the Competitive Bids accepted by the Borrower shall not exceed the principal amount specified in the Competitive Bid Request therefor,
c. if the Borrower shall desire to accept a Competitive Bid made at a particular Competitive Bid Rate, it must accept all other Competitive Bids at a fixed rate of interest per annum (each a "such Competitive Bid Rate", provided, however, that if the acceptance of all such other Competitive Bids would cause the aggregate amount of all such accepted Competitive Bids to exceed the amount requested, then such acceptance shall be made pro rata in accordance with the amount of each such Competitive Bid at such Competitive Bid Rate,
d. except pursuant to Section 2.6(d)(iii), no Competitive Bid shall be accepted unless the Competitive Bid Loan with respect thereto shall be in (1) specified thereina minimum principal amount of $2,000,000, without reference to the LIBOR Rate or other basis for interest ratesa whole multiple of $1,000,000 in excess thereof, in or (2) if less, an aggregate principal amount equal to the excess of the Aggregate Revolving Credit Commitment Amount over the outstanding principal balance of all Loans; and
e. a Lender's obligation to lend its Commitment Percentage of Revolving Credit Loans requested by the Borrower shall not less than $1,000,000 be affected by such Lender making a Competitive Bid Loan.
5. The Administrative Agent shall promptly notify each bidding Lender whether or not each Competitive Bid of such Lender has been accepted (and, for amounts in excess thereof, an integral multiple of $100,000. Multiple Competitive Bids may be delivered by any Bank.
(c) The Company shallif so, in its sole discretion but subject to paragraph (dwhat amount) belowby telecopy sent by the Administrative Agent, irrevocably accept or reject any and, if such Competitive Bid (has been accepted by the Borrower, in whole or any Portion thereof) not in part, such bidding Lender shall, after its receipt of such notice and no later than 12:00 noon on the proposed Borrowing Date by notice to the appropriate Bank by telephone (confirmed in writing promptly delivered to for such Bank and the Agent the same day). If a Bank fails to receive notice from the Company of its acceptance or rejection of any Competitive Bids made by such Bank at or prior to 12:00 noon on such day, all such Competitive Bids shall be deemed to have been rejected by the Company. The Company's written acceptance of any Competitive Bid shall constitute a borrowing notice of the Company, and shall specify the amount, maturity date and Bid Rate for each Competitive Bid Loan. The Company will give written notice , make immediately available funds available to the Administrative Agent at the address therefor set forth in Section 11.2, in the form of Part 3 of Exhibit 2.2 hereto on each Business Day on amount in which there is any change in the aggregate outstanding principal amount of Competitive Bid Loans, setting forth the aggregate principal amount of all Competitive Bid Loans then outstanding after giving effect to any Competitive Bid Loans made on such Business Day.
(d) If the Company accepts a Portion of a proposed Competitive Bid Loan for a single Loan Period at the Bid Rate provided therefor in a Bank's Competitive Bid, such Portion shall be in a principal amount of $1,000,000 or, for amounts in excess thereof, an integral multiple of $100,000. If the Company accepts any Competitive Bid Loan or Portion offered in any Competitive Bid, the Company must accept Competitive Bids (and Competitive Bid Loans and Portions thereby offered) based exclusively upon the successively lowest Bid Rates within each Loan Period and no other criteria. If two (2) or more Banks submit Competitive Bids with identical Bid Rates for the same Loan Period and the Company accepts any thereof, the Company shall accept all such Competitive Bids as nearly as possible in proportion to the amounts of such Banks' respective Competitive Bids with identical Bid Rates for such Loan Period, provided, that if the amount of Competitive Bid Loans to be so allocated is not sufficient to enable each such Bank to make such Competitive Bid Loan (or Portions thereof) in an aggregate principal amount of $1,000,000, or for amounts in excess thereof, an integral multiple of $100,000, the Company shall round the Competitive Bid Loans (or Portions thereof) allocated to such Bank or Banks as the Company shall select as necessary to a minimum of $1,000,000 and, if greater than $1,000,000, the nearest multiple of $100,000, or select the Competitive Bid of only one of such Banks.
(e) Not later than 1:30 p.m., Milwaukee time, on the relevant Borrowing Date, each Bank whose Competitive Bid was accepted by the Company shall make Borrower, and the amount so made available to the Administrative Agent on such Borrowing Date will then, subject to the satisfaction of the terms and conditions of this Agreement, as reasonably determined by the Administrative Agent, in immediately be made available funds, on such Borrowing Date to the proceeds Borrower by the Administrative Agent at such office by crediting the account of the Borrower on the books of such Bank's office with the aggregate of said amount received by the Administrative Agent. Notwithstanding anything to the contrary contained herein, no Lender shall be obligated to make a Competitive Bid Loan(s). Upon fulfillment of the applicable borrowing conditions, the Agent shall deposit in the Company's account maintained with the Agent or as the Company may otherwise direct in writing on the relevant Borrowing Date the proceeds of Loan if immediately after making such Competitive Bid LoansLoan, the Aggregate Credit Exposure would exceed the Aggregate Revolving Credit Commitment Amount.
6. A Competitive Bid Request shall not be made within five Business Days after the date of any previous Competitive Bid Request, unless the Borrower has accepted one or more Competitive Bids pursuant to a Competitive Bid Request made within such five Business Days.
7. If the Administrative Agent shall elect to submit a Competitive Bid in immediately available fundsits capacity as a Lender, it shall submit such bid directly to the Borrower fifteen minutes earlier than the latest time at which the other Lenders are required to submit their bids to the Administrative Agent pursuant to Section 2.6(b).
8. m.All notices required by this Section 2.6 shall be given in accordance with Section 11.2.
Section 5.1 9. The Competitive Bid Loans made by each Lender shall be evidenced by a promissory note of the Credit Agreement is hereby amended by adding Borrower, substantially in the form of Exhibit B-3 (each, as indorsed or modified from time to time, a new subparagraph (h) at "COMPETITIVE BID NOTE"), payable to the end order of such section, reading in its entirety as follows:Lender and dated the Effective Date. Each Competitive Bid Loan shall be due and payable on the last day of the Competitive Interest Period applicable thereto.
Appears in 1 contract