Competitive Bid Loans. (a) In addition to Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date and provided no Default or Event of Default exists hereunder, the Borrower may, as set forth in this Section 2.5, request the Revolving Credit Lenders to make offers to make Competitive Bid Loans to the Borrower in Dollars. The Revolving Credit Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section 2.5. There may be no more than ten (10) Interest Periods, and no more than one (1) one-week Interest Periods, for all Revolving Credit Loans and Competitive Bid Loans outstanding at the same time (for which purpose Interest Periods for each Term Benchmark Revolving Credit Loan and each Competitive Bid Loan shall be deemed to be different Interest Periods even if they are coterminous). The aggregate principal amount of all Outstanding Revolving Credit Obligations shall not exceed the Total Revolving Credit Commitment at any time. The aggregate principal amount of all outstanding Competitive Bid Loans shall not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any time. (b) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative Agent and the Revolving Credit Lenders notice (a “Competitive Bid Quote Request”) to be received no later than 12:00 Noon on (A) the fourth Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree). The Borrower may request offers to make Competitive Bid Loans for up to three (3) different Interest Periods in a single notice; provided that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate borrowing (a “Competitive Bid Borrowing”) and there shall not be outstanding at any one time more than four (4) Competitive Bid Borrowings. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit G attached hereto and shall specify as to each Competitive Bid Borrowing: (i) the proposed date of such borrowing, which shall be a Business Day; (ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least $10,000,000 (or in increments of $1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.5(a) hereof to be violated; (iii) the duration of the Interest Period applicable thereto; (iv) whether the Competitive Bid Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Term Benchmark Competitive Rate; (v) whether the Borrower shall have the right to prepay a requested Competitive Bid Loan; and (vi) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the “Quotation Date”). Except as otherwise provided in this Section 2.5(b), no more than two (2) Competitive Bid Quote Requests shall be given within five (5) Business Days (or such other number of days as the Borrower and the Administrative Agent may agree) of any other Competitive Bid Quote Request. (i) Each Revolving Credit Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if the Borrower’s request under Section 2.5(b) hereof specified more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the Borrower not later than 9:30 A.M. on (A) the third Business Day prior to the proposed date of borrowing, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree) provided that if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g), any Competitive Bid Quote may be submitted by JPMorgan Chase Bank (or its applicable Lending Office) only if JPMorgan Chase Bank (or such applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than 9:15 A.M. on the Quotation Date. Any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrower. (ii) Each Competitive Bid Quote shall be substantially in the form of Exhibit H attached hereto and shall specify: (A) the proposed date of borrowing and the Interest Period therefor; (B) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount shall be at least $5,000,000 (or in increments of $1,000,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans for which a Lender submits Competitive Bid Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested; (C) in the case of a Competitive Bid Quote for Competitive Bid Loans at an Absolute Rate, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Competitive Bid Loan (the “Absolute Rate”); (D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Term Benchmark Competitive Rate, the positive or negative margin to be added to or deducted from the Adjusted Term SOFR Rate; and (E) the identity of the quoting ▇▇▇▇▇▇. Unless otherwise agreed by the Administrative Agent and the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made. Any subsequent Competitive Bid Quote submitted by a Revolving Credit Lender that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request shall be disregarded by the Borrower unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote. (d) The Borrower shall as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 12:00 Noon on (A) in the case of a Competitive Bid Loan at an Absolute Rate, the Quotation Date (or such other time and date as the Borrower and the Administrative Agent may agree) or (B) in the case of a Competitive Bid Loan at a Term Benchmark Competitive Rate, the third Business Day prior to the proposed date of borrowing) notify the Administrative Agent and Revolving Credit Lenders of (x) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (y) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rates, as the case may be, so offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote), and (z) its acceptance or nonacceptance of the Competitive Bid Quotes. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $5,000,000 or in increments of $1,000,000 in excess thereof); provided that: (i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request; (ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or an increment of $1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.5(a) hereof to be violated; (iii) except as provided below, acceptance of Competitive Bid Quotes for any Interest Period may be made only in ascending order of Absolute Rates or Term Benchmark Competitive Rates, as the case may be, beginning with the lowest rate so offered; and (iv) the Borrower may not accept any Competitive Bid Quote where such Competitive Bid Quote fails to comply with Section 2.5(c)(ii) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.5(a) hereof). Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, accept a Competitive Bid Quote that does not contain the lowest Absolute Rate or Term Benchmark Competitive Rates, as the case may be, where acceptance of the Competitive Bid Quote containing the lowest Absolute Rate or Term Benchmark Competitive Rate, as the case may be, would be less favorable to the Borrower or would cause the principal amount of Outstanding Revolving Credit Obligations to exceed the Total Revolving Credit Commitment. If Competitive Bid Quotes are made by two or more Revolving Credit Lenders with the same Absolute Rates or Term Benchmark Competitive Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Term Benchmark Competitive Rates, as the case may be, offered by any Revolving Credit Lender for such related Interest Period, the principal amount of Competitive Bid Loans in respect of which such Competitive Bid Quotes are accepted shall be allocated by the Borrower among such Lenders as nearly as possible (in amounts of at least $1,000,000 or in increments of $100,000 in excess thereof) in proportion to the aggregate principal amount of such Competitive Bid Quotes. Determinations by the Borrower of the amounts of Competitive Bid Loans and the lowest bid after adjustment as provided in Section 2.5(d)(iii) shall be conclusive in the absence of manifest error. (e) Any Revolving Credit Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:00 P.M. on the date specified for the making of such Loan, make the amount of such Loan available to the Borrower as shall be directed by the Authorized Representative in Dollars and in immediately available funds. (f) From time to time, the Borrower shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and maturities thereof. (g) The Borrower may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A) in the case of a Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 A.M. on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Term Benchmark Competitive Rate, by 10:00 A.M. on the date a Competitive Bid Quote is submitted, notify the Borrower of the terms of any Competitive Bid Quote submitted by a Revolving Credit Lender that is in accordance with Section 2.5(c) hereof. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rate, as the case may be, offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of borrowing, in the case of Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree), the Borrower shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid Quotes which the Borrower requires the Administrative Agent to issue pursuant to this paragraph (g), the Borrower shall pay to the Administrative Agent for the account of the Administrative Agent a bid administration fee of $1,500.

Appears in 1 contract

Sources: Credit Agreement (Autonation, Inc.)

Competitive Bid Loans. (a) In addition to making Revolving ~~Credit Loans, at any time prior~~ Loans pursuant to the Revolving Credit ~~Termination Date and provided no Default or Event of Default exists hereunder~~Commitments pursuant to Section 2.1. above, the ~~Borrower~~ Lenders may, ~~as set forth~~ in ~~this Section 2.5~~their sole discretion and at the request of the Borrower, ~~request the Revolving Credit Lenders to make offers to~~ make Competitive Bid ~~Loans~~ Rate Advances to the Borrower in ~~Dollars. The~~ an amount not to exceed the Available Revolving Credit Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section 2.5. There may be no more than ten (10) Interest Periods, and no more than one (1) one-week Interest Periods, for all Revolving Credit Loans and Competitive Bid Loans outstanding at the same time (for which purpose Interest Periods for each Term Benchmark Revolving Credit Loan and each Competitive Bid Loan shall be deemed to be different Interest Periods even if they are coterminous). The aggregate principal amount of all Outstanding Revolving Credit Obligations shall not exceed the Total Revolving Credit Commitment at any time. The aggregate principal amount of all outstanding Competitive Bid Loans shall not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any timeCommitment. (b) ~~When~~ In order to request Competitive Bids, the Borrower ~~wishes~~ shall telecopy to ~~request offers to make~~ the Agent a duly completed Competitive Bid Loans, it shall give the Administrative Agent and the Revolving Credit Lenders notice (a “Competitive Bid Quote Request”) to be received no later than 12:00 Noon on (A) the fourth Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree). The Borrower may request offers to make Competitive Bid Loans for up to three (3) different Interest Periods in a single notice; provided that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate borrowing (a “Competitive Bid Borrowing”) and there shall not be outstanding at any one time more than four (4) Competitive Bid Borrowings. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit G D attached hereto ~~and shall specify as~~ to ~~each~~ be received by Agent no later than 11:00 a.m. (Nashville, Tennessee time), three (3) Business Days prior to the proposed Competitive Bid ~~Borrowing:~~ Loan or Loans. A Competitive Bid Request that does not conform substantially to the format of Exhibit D may be rejected in the Agent's sole discretion, and the Agent shall notify the Borrower of such rejection by telecopy not later than 1:00 p.m. (Nashville, Tennessee time) on the date of receipt. The Competitive Bid Request shall in each case refer to this Agreement and specify (i) the ~~proposed~~ date of such ~~borrowing,~~ Borrowing or Borrowings (which shall be a Business Day; ) and (ii) the aggregate principal amount ~~of such Competitive Bid Borrowing,~~ thereof which shall be ~~at least $10,000,000 (or~~ in ~~increments~~ a minimum principal amount of $~~1,000,000~~ 5,000,000 and in ~~excess thereof) but shall not cause the limits specified in Section 2.5(a) hereof to be violated;~~ an integral multiple of $1,000,000, and (iii) ~~the duration of~~ subject to Section 3.4. herein, the Interest Period ~~applicable~~ requested with respect thereto; . Promptly after its receipt of a Competitive Bid Request that is not rejected as aforesaid, the Agent shall invite by telecopy (ivsubstantially in the form set forth in Exhibit E attached hereto) ~~whether~~ the Lenders to bid, subject to the terms and conditions of this Agreement, to make Competitive Bid Rate Advances pursuant to the Competitive Bid ~~Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Term Benchmark Competitive Rate; (v) whether the~~ Request. The Borrower shall have the right to prepay a requested Competitive Bid Loan; and (vi) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the “Quotation Date”). Except as otherwise provided in this Section 2.5(b), no may not make more than two (2) Competitive Bid ~~Quote~~ Requests ~~shall be given within five~~ in any seven (57) consecutive Business ~~Days (or such other number of days as the Borrower and the Administrative Agent may agree) of any other Competitive Bid Quote Request~~Days. (ic) Each ~~Revolving Credit~~ Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if the Borrower’s request under Section 2.5(b) hereof specified more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the Borrower not later than 9:30 A.M. on (A) the third Business Day prior to the proposed date of borrowing, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree) provided that if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g), any Competitive Bid Quote may be submitted by JPMorgan Chase Bank (or its applicable Lending Office) only if JPMorgan Chase Bank (or such applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than 9:15 A.M. on the Quotation Date. Any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrower. (ii) Each Competitive Bid Quote shall be substantially in the form of Exhibit H attached hereto and shall specify: (A) the proposed date of borrowing and the Interest Period therefor; (B) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount shall be at least $5,000,000 (or in increments of $1,000,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans for which a Lender submits Competitive Bid Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested; (C) in the case of a Competitive Bid Quote for Competitive Bid Loans at an Absolute Rate, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Competitive Bid Loan (the “Absolute Rate”); (D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Term Benchmark Competitive Rate, the positive or negative margin to be added to or deducted from the Adjusted Term SOFR Rate; and (E) the identity of the quoting ▇▇▇▇▇▇. Unless otherwise agreed by the Administrative Agent and the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made. Any subsequent Competitive Bid Quote submitted by a Revolving Credit Lender that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request shall be disregarded by the Borrower unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote. (d) The Borrower shall as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 12:00 Noon on (A) in the case of a Competitive Bid Loan at an Absolute Rate, the Quotation Date (or such other time and date as the Borrower and the Administrative Agent may agree) or (B) in the case of a Competitive Bid Loan at a Term Benchmark Competitive Rate, the third Business Day prior to the proposed date of borrowing) notify the Administrative Agent and Revolving Credit Lenders of (x) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (y) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rates, as the case may be, so offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote), and (z) its acceptance or nonacceptance of the Competitive Bid Quotes. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $5,000,000 or in increments of $1,000,000 in excess thereof); provided that: (i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request; (ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or an increment of $1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.5(a) hereof to be violated; (iii) except as provided below, acceptance of Competitive Bid Quotes for any Interest Period may be made only in ascending order of Absolute Rates or Term Benchmark Competitive Rates, as the case may be, beginning with the lowest rate so offered; and (iv) the Borrower may not accept any Competitive Bid Quote where such Competitive Bid Quote fails to comply with Section 2.5(c)(ii) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.5(a) hereof). Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, ~~accept~~ make one or more Competitive Bids (but not more than two) to the Borrower responsive to a Competitive Bid ~~Quote~~ Request. Each Competitive Bid by a Lender must be received by the Agent via telecopy, substantially in the form of Exhibit F attached hereto, not later than 9:30 a.m. (Nashville, Tennessee time) on the Business Day of the proposed Competitive Bid Loan. Multiple bids (not to exceed two per Lender) will be accepted by the Agent. Competitive Bids that ~~does~~ do not ~~contain~~ conform substantially to the ~~lowest Absolute Rate or Term Benchmark~~ format of Exhibit F may be rejected by the Agent acting in consultation with the Borrower, and the Agent shall notify the Lender making such nonconforming bid of such rejection as soon as practicable. Each Competitive ~~Rates, as~~ Bid shall refer to this Agreement and specify (i) the ~~case may be, where acceptance~~ principal amount (which shall be in a minimum principal amount of $5,000,000 and in an integral multiple of $1,000,000) of the Competitive Bid ~~Quote containing~~ Rate Advance or Advances that the ~~lowest Absolute~~ Lender is willing to make to the Borrower, (ii) the Competitive Bid Rate or ~~Term Benchmark~~ Rates at which the Lender is prepared to make the Competitive ~~Rate~~Bid Rate Advance or Advances, and (iii) the Interest Period and the last day thereof. If any Lender shall elect not to make a Competitive Bid, such Lender shall so notify the Agent via telecopy by the time specified above for submitting a Competitive Bid; provided, however, that failure by any Lender to give such notice shall not cause such Lender to be obligated to make any Competitive Bid Rate Advance as ~~the case may be, would~~ part of such Competitive Bid Loan. A Competitive Bid submitted by a Lender pursuant to this paragraph (c) shall be ~~less favorable to~~ irrevocable (absent manifest error). (d) The Agent shall promptly notify the Borrower ~~or would cause~~ by telecopy of all the Competitive Bids made, the Competitive Bid Rate and the principal amount of ~~Outstanding Revolving Credit Obligations to exceed the Total Revolving Credit Commitment. If~~ each Competitive Bid ~~Quotes are made by two or more Revolving Credit Lenders with the same Absolute Rates or Term Benchmark Competitive Rates, as the case may be, for a greater aggregate principal amount than the amount~~ Rate Advance in respect of which a Competitive Bid ~~Quotes are accepted for~~ was made and the ~~related Interest Period after~~ identity of the ~~acceptance~~ Lender that made each bid. The Agent shall send a copy of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Term Benchmark Competitive Rates, as the case may be, offered by any Revolving Credit Lender for such related Interest Period, the principal amount of Competitive Bid Loans in respect of which such Competitive Bid Quotes are accepted shall be allocated by Bids to the Borrower ~~among such Lenders~~ for its records as ~~nearly~~ soon as possible (in amounts of at least $1,000,000 or in increments of $100,000 in excess thereof) in proportion to the aggregate principal amount of such Competitive Bid Quotes. Determinations by the Borrower practicable after completion of the ~~amounts of Competitive Bid Loans and the lowest bid after adjustment as provided~~ bidding process set forth in this Section ~~2.5(d)(iii) shall be conclusive in the absence of manifest error~~2.4. (e) ~~Any Revolving Credit Lender whose offer~~ The Borrower may, in its sole and absolute discretion, subject only to ~~make~~ the provisions of this paragraph (e), accept or reject any Competitive Bid ~~Loan has been accepted shall, not later than 1:00 P.M. on the date specified for the making of such Loan, make the amount of such Loan available~~ referred to ~~the Borrower as shall be directed by the Authorized Representative~~ in ~~Dollars and in immediately available funds.~~ paragraph (fd) ~~From time to time, the~~ above. The Borrower shall ~~furnish such information to~~ notify the ~~Administrative~~ Agent ~~as the Administrative Agent may request relating to the making of Competitive Bid Loans~~by telephone, including the amounts, interest rates, dates of borrowings and maturities thereof. (g) The Borrower may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A) confirmed by tele-copy in the ~~case~~ form of a Competitive Bid ~~Loan at~~ Accept/Reject Letter, whether and to what extent it has decided to accept or reject any of or all the ~~Absolute Rate~~bids referred to in paragraph (d) above not later than 11:30 a.m. (Nashville, ~~as promptly as practicable after~~ Tennessee time) on the Business Day of the proposed Competitive Bid ~~Quote is submitted~~ Loan; provided, however, that (but in no event later than 10:00 A.M. on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Term Benchmark Competitive Rate, by 10:00 A.M. on the date a Competitive Bid Quote is submitted, notify the Borrower of the terms of any Competitive Bid Quote submitted by a Revolving Credit Lender that is in accordance with Section 2.5(c) hereof. The Administrative Agent’s notice to the Borrower shall specify (Ai) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rate, as the case may be, offered failure by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of borrowing, in the case of Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree), the Borrower shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrower to give such notice shall be deemed to be a rejection of all the bids referred to in paragraph (d) above, (ii) the Borrower shall not accept a bid made at a particular Competitive Bid Rate if the Borrower has decided to reject a bid made at a lower Competitive Bid Rate with respect to the same requested Advance, (iii) the aggregate amount of the Competitive Bids accepted by the Borrower shall not exceed the principal amount specified in the Competitive Bid Request, (iv) if the Borrower shall accept a bid or bids made at a particular Competitive Bid Rate but the amount of such ~~time~~ bid or bids shall ~~constitute nonacceptance~~cause the total amount of bids to be accepted by the Borrower to exceed the amount specified in the Competitive Bid Request, then the Borrower shall accept a portion of such bid or bids in an amount equal to the amount specified in the Competitive Bid Request less the amount of all other Competitive Bids accepted with respect to such Competitive Bid Request, which acceptance, in the case of multiple bids at the same Competitive Bid Rate, shall be made pro rata in accordance with the amount of each such bid at such Competitive Bid Rate, and (v) except pursuant to clause (iv) above, no bid shall be accepted for a Competitive Bid Loan unless such Competitive Bid Loan is in a minimum principal amount of $5,000,000 and an integral multiple of $1,000,000; provided further, however, that if a Competitive Bid Loan must be in an amount less than $5,000,000 because of the ~~Administrative~~ provisions of clause (iv) above, such Competitive Bid Loan may be for a minimum of $1,000,000 or any integral multiple thereof, and in calculating the pro rata allocation of acceptances of portions of multiple bids at a particular Competitive Bid Rate pursuant to clause (iv) above, the amounts shall be rounded to integral multiples of $1,000,000 in a manner which shall be in the discretion of the Borrower. A notice given by the Borrower pursuant to this paragraph (e) shall be irrevocable. (f) The Agent shall promptly notify each ~~affected Lender. Together with each notice of a request for~~ bidding Lender whether or not its Competitive Bid ~~Quotes~~ has been accepted (and if so, in what amount and at what Competitive Bid Rate) by telecopy sent by the Agent, and each successful bidder will thereupon become bound, subject to the other applicable conditions hereof, to make the Competitive Bid Loan in respect of which its bid has been accepted. (g) No more than two (2) Competitive Bid Requests shall be made by the Borrower within any seven (7) consecutive Business Days. (h) If the Agent shall elect to submit a Competitive Bid in its capacity as a Lender, it shall submit such bid directly to the Borrower one half of an hour earlier than the time at which the ~~Borrower requires~~ other Lenders are required to submit their bids to the ~~Administrative~~ Agent ~~to issue~~ pursuant to ~~this~~ paragraph (~~g),~~ c) above. (i) Each Lender participating in any Competitive Bid Loan shall make its Competitive Bid Rate Advance available to the Agent on the date specified in the Bid Request at the time and in the manner and subject to the provisions specified in Section 3.2. (j) The proceeds of each of the Competitive Bid Loans shall be used by the Borrower ~~shall pay to the Administrative Agent~~ for ~~the account~~ acquisitions, capital expenditures and as working capital, stock redemption, and for other general corporate purposes of the ~~Administrative Agent a bid administration fee~~ Borrower and other Consolidated Companies. (k) Any Lender's Competitive Bid Rate Advance shall not reduce such Lender's obligation to lend its share of ~~$1,500~~the remaining unused Commitments.

Appears in 1 contract

Sources: Credit Agreement (Dollar General Corp)

Competitive Bid Loans. (a) In addition to Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date and provided no Default or Event of Default exists hereunder, the Borrower may, as set forth in this Section 2.5, request the Revolving Credit Lenders to make offers to make Competitive Bid Loans to the Borrower in Dollars. The Revolving Credit Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section 2.5. There may be no more than ten (10) Interest Periods, and no more than one (1) one-week Interest Periods, for all Revolving Credit Loans and Competitive Bid Loans outstanding at the same time (for which purpose Interest Periods for each ~~Term Benchmark~~ Eurodollar Revolving Credit Loan and each Competitive Bid Loan shall be deemed to be different Interest Periods even if they are coterminous). The aggregate principal amount of all Outstanding Revolving Credit Obligations shall not exceed the Total Revolving Credit Commitment at any time. The aggregate principal amount of all outstanding Competitive Bid Loans shall not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any time. (b) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative Agent and the Revolving Credit Lenders notice (a “Competitive Bid Quote Request”) to be received no later than 12:00 Noon on (A) the fourth Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the ~~Term Benchmark~~ Eurodollar Competitive Rate or (B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree). The Borrower may request offers to make Competitive Bid Loans for up to three (3) different Interest Periods in a single notice; provided that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate borrowing (a “Competitive Bid Borrowing”) and there shall not be outstanding at any one time more than four (4) Competitive Bid Borrowings. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit G attached hereto and shall specify as to each Competitive Bid Borrowing: (i) the proposed date of such borrowing, which shall be a Business Day; (ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least $10,000,000 (or in increments of $1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.5(a) hereof to be violated; (iii) the duration of the Interest Period applicable thereto; (iv) whether the Competitive Bid Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the ~~Term Benchmark~~ Eurodollar Competitive Rate; (v) whether the Borrower shall have the right to prepay a requested Competitive Bid Loan; and (vi) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the “Quotation Date”). Except as otherwise provided in this Section 2.5(b), no more than two (2) Competitive Bid Quote Requests shall be given within five (5) Business Days (or such other number of days as the Borrower and the Administrative Agent may agree) of any other Competitive Bid Quote Request. (i) Each Revolving Credit Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if the Borrower’s request under Section 2.5(b) hereof specified more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the Borrower not later than 9:30 A.M. on (A) the third Business Day prior to the proposed date of borrowing, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree) provided that if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g), any Competitive Bid Quote may be submitted by JPMorgan Chase Bank (or its applicable Lending Office) only if JPMorgan Chase Bank (or such applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than 9:15 A.M. on the Quotation Date. Any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrower. (ii) Each Competitive Bid Quote shall be substantially in the form of Exhibit H attached hereto and shall specify: (A) the proposed date of borrowing and the Interest Period therefor; (B) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount shall be at least $5,000,000 (or in increments of $1,000,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans for which a Lender submits Competitive Bid Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested; (C) in the case of a Competitive Bid Quote for Competitive Bid Loans at an Absolute Rate, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Competitive Bid Loan (the “Absolute Rate”); (D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Term Benchmark Competitive Rate, the positive or negative margin to be added to or deducted from the Adjusted Term SOFR Rate; and (E) the identity of the quoting ▇▇▇▇▇▇. Unless otherwise agreed by the Administrative Agent and the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made. Any subsequent Competitive Bid Quote submitted by a Revolving Credit Lender that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request shall be disregarded by the Borrower unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote. (d) The Borrower shall as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 12:00 Noon on (A) in the case of a Competitive Bid Loan at an Absolute Rate, the Quotation Date (or such other time and date as the Borrower and the Administrative Agent may agree) or (B) in the case of a Competitive Bid Loan at a Term Benchmark Competitive Rate, the third Business Day prior to the proposed date of borrowing) notify the Administrative Agent and Revolving Credit Lenders of (x) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (y) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rates, as the case may be, so offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote), and (z) its acceptance or nonacceptance of the Competitive Bid Quotes. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $5,000,000 or in increments of $1,000,000 in excess thereof); provided that: (i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request; (ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or an increment of $1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.5(a) hereof to be violated; (iii) except as provided below, acceptance of Competitive Bid Quotes for any Interest Period may be made only in ascending order of Absolute Rates or Term Benchmark Competitive Rates, as the case may be, beginning with the lowest rate so offered; and (iv) the Borrower may not accept any Competitive Bid Quote where such Competitive Bid Quote fails to comply with Section 2.5(c)(ii) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.5(a) hereof). Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, accept a Competitive Bid Quote that does not contain the lowest Absolute Rate or Term Benchmark Competitive Rates, as the case may be, where acceptance of the Competitive Bid Quote containing the lowest Absolute Rate or Term Benchmark Competitive Rate, as the case may be, would be less favorable to the Borrower or would cause the principal amount of Outstanding Revolving Credit Obligations to exceed the Total Revolving Credit Commitment. If Competitive Bid Quotes are made by two or more Revolving Credit Lenders with the same Absolute Rates or Term Benchmark Competitive Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Term Benchmark Competitive Rates, as the case may be, offered by any Revolving Credit Lender for such related Interest Period, the principal amount of Competitive Bid Loans in respect of which such Competitive Bid Quotes are accepted shall be allocated by the Borrower among such Lenders as nearly as possible (in amounts of at least $1,000,000 or in increments of $100,000 in excess thereof) in proportion to the aggregate principal amount of such Competitive Bid Quotes. Determinations by the Borrower of the amounts of Competitive Bid Loans and the lowest bid after adjustment as provided in Section 2.5(d)(iii) shall be conclusive in the absence of manifest error. (e) Any Revolving Credit Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:00 P.M. on the date specified for the making of such Loan, make the amount of such Loan available to the Borrower as shall be directed by the Authorized Representative in Dollars and in immediately available funds. (f) From time to time, the Borrower shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and maturities thereof. (g) The Borrower may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A) in the case of a Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 A.M. on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Term Benchmark Competitive Rate, by 10:00 A.M. on the date a Competitive Bid Quote is submitted, notify the Borrower of the terms of any Competitive Bid Quote submitted by a Revolving Credit Lender that is in accordance with Section 2.5(c) hereof. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rate, as the case may be, offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of borrowing, in the case of Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree), the Borrower shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid Quotes which the Borrower requires the Administrative Agent to issue pursuant to this paragraph (g), the Borrower shall pay to the Administrative Agent for the account of the Administrative Agent a bid administration fee of $1,500.

Appears in 1 contract

Sources: Credit Agreement (Autonation Inc /Fl)

Competitive Bid Loans. (a) In addition to borrowings of Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date ~~and provided no Default or Event of Default exists hereunder,~~ the Borrower may, as set forth in this Section ~~2.5~~2.03, request the ~~Revolving Credit~~ Lenders to make offers to make Competitive Bid Loans to the Borrower in Dollars. The ~~Revolving Credit~~ Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section ~~2.5~~2.03. ~~There may be no more than ten (10) Interest Periods, and no more than one (1) one-week Interest Periods, for all~~ The making of a Competitive Bid Loan by any Lender shall not reduce such Lender's available Revolving Credit ~~Loans and~~ Commitment except as a result of such Competitive Bid ~~Loans outstanding at~~ Loan reducing the ~~same time (for which purpose Interest Periods for each Term Benchmark~~ availability under the Total Revolving Credit ~~Loan and~~ Commitment. Immediately after giving effect to each Competitive Bid ~~Loan shall be deemed to be different Interest Periods even if they are coterminous). The aggregate principal amount of all Outstanding Revolving Credit Obligations~~ Loan, Total Outstandings shall not exceed the Total Revolving Credit ~~Commitment at any time~~Commitment. ~~The aggregate principal amount of all outstanding~~ Each Competitive Bid ~~Loans shall not exceed one hundred percent (100%)~~ Loan may be repaid only on the last day of the ~~Total Revolving Credit Commitment at any time~~Interest Period with respect thereto unless such payment is accompanied by the additional payment, if any, required by Section 4.05. (b) When the Borrower wishes to request offers from Lenders to make Competitive Bid Loans, it shall give the ~~Administrative~~ Agent ~~and~~ (which shall promptly notify the ~~Revolving Credit Lenders~~ Lenders) notice (a “"Competitive Bid Quote Request”") to be received no later than ~~12:00 Noon~~ 10:00 A.M. on ~~(A)~~ the ~~fourth~~ Business Day ~~prior to~~ immediately preceding the date of borrowing proposed ~~therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate~~ therein (or ~~(B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case,~~ such other time and date as the Borrower and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree). The Borrower may request offers from Lenders to make Competitive Bid Loans for up to ~~three~~ four (34) different Interest Periods in a single notice; provided that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate borrowing (a “"Competitive Bid Borrowing”") ~~and there shall not be outstanding at any~~ of one ~~time~~ or more ~~than four (4)~~ Competitive Bid ~~Borrowings~~Loans from the Lenders. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit ~~G attached~~ D hereto and shall specify as to each Competitive Bid Borrowing: : (i) the proposed date of such ~~borrowing~~Competitive Bid Borrowing, which shall be a Business Day; ; (ii) the ~~aggregate~~ amount of such Competitive Bid Borrowing, which shall be at least $~~10,000,000~~ 5,000,000 (or ~~in increments~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000) but shall not cause the limits specified in Section ~~2.5(a~~2.03(a) ~~hereof~~ to be violated; ; (iii) the duration of the Interest Period applicable thereto; ; and (iv) whether the Competitive Bid Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Term Benchmark Competitive Rate; (v) whether the Borrower shall have the right to prepay a requested Competitive Bid Loan; and (vi) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the “"Quotation Date”"). Except as otherwise provided in this Section ~~2.5(b~~2.03(b), no ~~more than two (2)~~ Competitive Bid Quote ~~Requests~~ Request shall be given within five (5) Business Days (or such other number of days as the Borrower and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree) of any other Competitive Bid Quote Request. (i) Each ~~Revolving Credit~~ Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid ~~Loan~~ Loan, in response to any Competitive Bid Quote Request; provided that, if the Borrower’s 's request under Section ~~2.5(b~~2.03(b) ~~hereof specified~~ specifies more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the ~~Borrower~~ Agent not later than ~~9:30~~ 10:00 A.M. Charlotte, North Carolina time on ~~(A) the third Business Day prior to the proposed date of borrowing, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate or (B)~~ the Quotation ~~Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate~~ Date (~~or, in any such case,~~ or such other time and date as the Borrower and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree~~) provided~~ ; the Agent shall promptly notify all Lenders of such other agreed upon time and date); provided, that ~~if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g),~~ any Competitive Bid Quote may be submitted by ~~JPMorgan Chase Bank~~ the Agent (or its ~~applicable~~ Applicable Lending Office) only if ~~JPMorgan Chase Bank~~ the Agent (or such ~~applicable~~ Applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than ~~9:15~~ 9:45 A.M. (or 15 minutes prior to such other agreed upon time) Charlotte, North Carolina time on the Quotation Date. ~~Any~~ Subject to the express provisions of this Agreement, any Competitive Bid Quote so made shall be irrevocable except with the consent of the ~~Administrative~~ Agent given on at the ~~instructions~~ instruction of the Borrower. (ii) Each Competitive Bid Quote shall be substantially in the form of Exhibit ~~H attached~~ F hereto and shall specify: : (A) the proposed date of borrowing and the Interest Period therefor; ; (B) the principal amount of the Competitive Bid Loan for which ~~each~~ such offer is being made, which principal amount shall be at least $~~5,000,000~~ 1,000,000 (or ~~in increments~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000); provided that (x) the aggregate principal amount of all Competitive Bid Loans for which a Lender submits Competitive Bid Quotes in response to a Competitive Bid Quote Request may not exceed the principal amount of the Competitive Bid Borrowing for ~~a particular~~ the Interest Period for which offers were requested; , and (y) the limits specified in Section 2.03(a) shall not be exceeded; (C) ~~in the case of a Competitive Bid Quote for Competitive Bid Loans at an Absolute Rate,~~ the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Competitive Bid Loan (the “"Absolute Rate”"); ; and (D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Term Benchmark Competitive Rate, the positive or negative margin to be added to or deducted from the Adjusted Term SOFR Rate; and (E) the identity of the quoting ~~▇▇▇▇▇▇~~Lender. Unless otherwise agreed by the ~~Administrative~~ Agent and the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote ~~Request~~ Request, and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made~~. Any subsequent~~ . (d) The Agent shall, as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 10:30 A.M. Charlotte, North Carolina time on the Quotation Date), notify the Borrower of the terms (i) of any Competitive Bid Quote submitted by a ~~Revolving Credit~~ Lender that is in accordance with Section 2.03(c) and (ii) of any Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote ~~Request~~ Request. Any such subsequent Competitive Bid Quote shall be disregarded by the ~~Borrower~~ Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote. The Agent's notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Loans for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates so offered by each Lender (identifying the Lender that made each Competitive Bid Quote). (de) ~~The Borrower shall as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not~~ Not later than ~~12:00 Noon~~ 11:00 A.M. Charlotte, North Carolina time on ~~(A) in the case of a Competitive Bid Loan at an Absolute Rate,~~ the Quotation Date (or such other time and date as the Borrower and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree~~) or (B) in the case of a Competitive Bid Loan at a Term Benchmark Competitive Rate~~), the ~~third Business Day prior to the proposed date of borrowing)~~ Borrower shall notify the ~~Administrative~~ Agent ~~and Revolving Credit Lenders~~ of (x) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (y) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rates, as the case may be, so offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote), and (z) its acceptance or nonacceptance of the Competitive Bid ~~Quotes~~Quotes so notified to it pursuant to Section 2.03(d) (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Agent shall promptly notify each affected Lender. In the case of acceptance, such notice shall specify the aggregate principal amount of ~~offers~~ Competitive Bid Quotes for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $~~5,000,000~~ 1,000,000 or ~~in increments~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000); provided that: : (i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request; ; (ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or ~~an increment~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000) but shall not cause the limits specified in Section ~~2.5(a~~2.03(a) ~~hereof~~ to be violated; ; (iii) ~~except as provided below,~~ acceptance of Competitive Bid Quotes ~~for any Interest Period~~ may be made only in ascending order of Absolute ~~Rates or Term Benchmark Competitive~~ Rates~~, as the case may be~~, beginning with the lowest rate so offered; ~~and~~ and (iv) the Borrower may not accept any Competitive Bid Quote where the Agent has correctly advised the Borrower that such ~~Competitive Bid Quote~~ offer fails to comply with Section ~~2.5(c)(ii~~2.03(c)(ii) ~~hereof~~ or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section ~~2.5(a) hereof~~2.03(a). Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, accept a Competitive Bid Quote that does not contain the lowest Absolute Rate or Term Benchmark Competitive Rates, as the case may be, where acceptance of the Competitive Bid Quote containing the lowest Absolute Rate or Term Benchmark Competitive Rate, as the case may be, would be less favorable to the Borrower or would cause the principal amount of Outstanding Revolving Credit Obligations to exceed the Total Revolving Credit Commitment). If Competitive Bid Quotes are made by two or more ~~Revolving Credit~~ Lenders with the same Absolute ~~Rates or Term Benchmark Competitive~~ Rates, ~~as the case may be,~~ for ~~a greater~~ an aggregate principal amount that is greater than the amount in respect of which Competitive Bid Quotes are accepted for the related Interest Period (after taking into account the acceptance of all Competitive Bid ~~Quotes~~Quotes with lower Absolute Rates, if any, ~~of all lower Absolute Rates or Term Benchmark Competitive Rates, as the case may be,~~ offered by any ~~Revolving Credit~~ Lender for such related Interest Period), then the principal amount of Competitive Bid Loans in respect of which such Competitive Bid Quotes are accepted shall be allocated by the Borrower among such Lenders as nearly as possible (in amounts of at least $~~1,000,000 or in increments of $100,000 in excess thereof~~1,000,000) in proportion to the aggregate principal amount of such Competitive Bid Quotes. Determinations by the Borrower of the amounts of Competitive Bid Loans and the ~~lowest bid after adjustment~~ Absolute Rates as provided in Section ~~2.5(d)(iii~~2.03(e)(iii) shall be conclusive in the absence of manifest error. (ef) Any ~~Revolving Credit~~ Lender whose ~~offer to make any~~ Competitive Bid ~~Loan~~ Quote has been accepted in accordance with Section 2.03(e) shall, not later than 1:00 P.M. Charlotte, North Carolina time on the date specified for the making of such Competitive Bid Loan, make the amount of such Competitive Bid Loan as accepted by the Borrower available to the ~~Borrower as shall be directed by~~ Agent at the ~~Authorized Representative~~ Principal Office in Dollars and in immediately available funds~~. (f) From time to time~~, the Borrower shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and maturities thereof. (g) The Borrower may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A) in the case of a Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 A.M. on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Term Benchmark Competitive Rate, by 10:00 A.M. on the date a Competitive Bid Quote is submitted, notify the Borrower of the terms of any Competitive Bid Quote submitted by a Revolving Credit Lender that is in accordance with Section 2.5(c) hereof. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rate, as the case may be, offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of borrowing, in the case of Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree), the Borrower shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid Quotes which the Borrower requires the Administrative Agent to issue pursuant to this paragraph (g), the Borrower shall pay to the Administrative Agent for the account of the ~~Administrative~~ Borrower. The amount so received by the Agent ~~a bid administration fee~~ shall, subject to the terms and conditions of ~~$1,500~~this Agreement, be made available to the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in the Borrower's Account or otherwise as shall be directed by the Borrower.

Appears in 1 contract

Sources: Credit Agreement (Proffitts Inc)

Competitive Bid Loans. (a) In addition to Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date and provided no Default or Event of Default exists hereunder, the Borrower may, as set forth in this Section 2.5, request the Revolving Credit Lenders to make offers to make Competitive Bid Loans to the Borrower in Dollars. The Revolving Credit Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section 2.5. There may be no more than ten (10) Interest Periods, and no more than ~~one~~ one (1) one-week Interest Periods, for all Revolving Credit Loans and Competitive Bid Loans outstanding at the same time (for which purpose Interest Periods for each ~~Term Benchmark~~ Eurodollar Revolving Credit Loan and each Competitive Bid Loan shall be deemed to be different Interest Periods even if they are coterminous). The aggregate principal amount of all Outstanding Revolving Credit Obligations shall not exceed the Total Revolving Credit Commitment at any time. The aggregate principal amount of all outstanding Competitive Bid Loans shall not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any time. (b) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative Agent and the Revolving Credit Lenders notice (a “Competitive Bid Quote Request”) to be received no later than 12:00 Noon on (A) the fourth Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the ~~Term Benchmark~~ Eurodollar Competitive Rate or (B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree). The Borrower may request offers to make Competitive Bid Loans for up to three (3) different Interest Periods in a single notice; provided that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate borrowing (a “Competitive Bid Borrowing”) and there shall not be outstanding at any one time more than four (4) Competitive Bid Borrowings. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit G attached hereto and shall specify as to each Competitive Bid Borrowing: (i) the proposed date of such borrowing, which shall be a Business Day; (ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least $10,000,000 (or in increments of $1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.5(a) hereof to be violated; (iii) the duration of the Interest Period applicable thereto; (iv) whether the Competitive Bid Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the ~~Term Benchmark~~ Eurodollar Competitive Rate; (v) whether the Borrower shall have the right to prepay a requested Competitive Bid Loan; and (vi) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the “Quotation Date”). Except as otherwise provided in this Section 2.5(b), no more than two (2) Competitive Bid Quote Requests shall be given within five (5) Business Days (or such other number of days as the Borrower and the Administrative Agent may agree) of any other Competitive Bid Quote Request. (i) Each Revolving Credit Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if the Borrower’s request under Section 2.5(b) hereof specified more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the Borrower not later than 9:30 A.M. on (A) the third Business Day prior to the proposed date of borrowing, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the ~~Term Benchmark~~ Eurodollar Competitive Rate or (B) the Quotation Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree) provided that if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g), any Competitive Bid Quote may be submitted by JPMorgan Chase Bank (or its applicable Lending Office) only if JPMorgan Chase Bank (or such applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than 9:15 A.M. on the Quotation Date. Any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrower. (ii) Each Competitive Bid Quote shall be substantially in the form of Exhibit H attached hereto and shall specify: (A) the proposed date of borrowing and the Interest Period therefor; (B) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount shall be at least $5,000,000 (or in increments of $1,000,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans for which a Lender submits Competitive Bid Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested; (C) in the case of a Competitive Bid Quote for Competitive Bid Loans at an Absolute Rate, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Competitive Bid Loan (the “Absolute Rate”); (D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the ~~Term Benchmark~~ Eurodollar Competitive Rate, the positive or negative margin to be added to or deducted from the ~~Adjusted Term SOFR~~ Interbank Offered Rate; and (E) the identity of the quoting ~~▇▇▇▇▇▇~~Lender. Unless otherwise agreed by the Administrative Agent and the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made. Any subsequent Competitive Bid Quote submitted by a Revolving Credit Lender that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request shall be disregarded by the Borrower unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote. (d) The Borrower shall as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 12:00 Noon on (A) in the case of a Competitive Bid Loan at an Absolute Rate, the Quotation Date (or such other time and date as the Borrower and the Administrative Agent may agree) or (B) in the case of a Competitive Bid Loan at a ~~Term Benchmark~~ Eurodollar Competitive Rate, the third Business Day prior to the proposed date of borrowing) notify the Administrative Agent and Revolving Credit Lenders of (x) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (y) the respective principal amounts and Absolute Rates or ~~Term Benchmark~~ Eurodollar Competitive Rates, as the case may be, so offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote), and (z) its acceptance or nonacceptance of the Competitive Bid Quotes. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $5,000,000 or in increments of $1,000,000 in excess thereof); provided that: (i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request; (ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or an increment of $1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.5(a) hereof to be violated; (iii) except as provided below, acceptance of Competitive Bid Quotes for any Interest Period may be made only in ascending order of Absolute Rates or ~~Term Benchmark~~ Eurodollar Competitive Rates, as the case may be, beginning with the lowest rate so offered; and (iv) the Borrower may not accept any Competitive Bid Quote where such Competitive Bid Quote fails to comply with Section 2.5(c)(ii) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.5(a) hereof). Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, accept a Competitive Bid Quote that does not contain the lowest Absolute Rate or ~~Term Benchmark~~ Eurodollar Competitive Rates, as the case may be, where acceptance of the Competitive Bid Quote containing the lowest Absolute Rate or ~~Term Benchmark~~ Eurodollar Competitive Rate, as the case may be, would be less favorable to the Borrower or would cause the principal amount of Outstanding Revolving Credit Obligations to exceed the Total Revolving Credit Commitment. If Competitive Bid Quotes are made by two or more Revolving Credit Lenders with the same Absolute Rates or ~~Term Benchmark~~ Eurodollar Competitive Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or ~~Term Benchmark~~ Eurodollar Competitive Rates, as the case may be, offered by any Revolving Credit Lender for such related Interest Period, the principal amount of Competitive Bid Loans in respect of which such Competitive Bid Quotes are accepted shall be allocated by the Borrower among such Lenders as nearly as possible (in amounts of at least $1,000,000 or in increments of $100,000 in excess thereof) in proportion to the aggregate principal amount of such Competitive Bid Quotes. Determinations by the Borrower of the amounts of Competitive Bid Loans and the lowest bid after adjustment as provided in Section 2.5(d)(iii) shall be conclusive in the absence of manifest error. (e) Any Revolving Credit Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:00 P.M. on the date specified for the making of such Loan, make the amount of such Loan available to the Borrower as shall be directed by the Authorized Representative in Dollars and in immediately available funds. (f) From time to time, the Borrower shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and maturities thereof. (g) The Borrower may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A) in the case of a Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 A.M. on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the ~~Term Benchmark~~ Eurodollar Competitive Rate, by 10:00 A.M. on the date a Competitive ~~Bid~~ Quote is submitted, notify the Borrower of the terms of any Competitive Bid Quote submitted by a Revolving Credit Lender that is in accordance with Section 2.5(c) hereof. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or ~~Term Benchmark~~ Eurodollar Competitive Rate, as the case may be, offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of borrowing, in the case of Competitive Bid Loans at the ~~Term Benchmark~~ Eurodollar Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree), the Borrower shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid Quotes which the Borrower requires the Administrative Agent to issue pursuant to this paragraph (g), the Borrower shall pay to the Administrative Agent for the account of the Administrative Agent a bid administration fee of $1,500.

Appears in 1 contract

Sources: Credit Agreement (Autonation, Inc.)

Competitive Bid Loans. (a) In addition to Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date and provided no Default or Event of Default exists hereunder, the ~~Borrower~~ Borrowers may, as set forth in this Section ~~2.5~~2.02, request the ~~Revolving Credit~~ Lenders to make offers to make Competitive Bid Loans to the ~~Borrower~~ Borrowers in Dollars. The ~~Revolving Credit~~ Lenders may, but shall have no obligation to, make such offers and the ~~Borrower~~ Borrowers may, but shall have no obligation to, accept any such offers in the manner set forth in this Section ~~2.5~~2.02. There may be no more than ~~ten~~ twenty (1020) different Interest Periods, ~~and no more than~~ plus one (1) ~~one-~~one week Interest ~~Periods,~~ Period for ~~all~~ both Revolving Credit Loans and Competitive Bid Loans outstanding at the same time (for which purpose Interest Periods for each ~~Term Benchmark Revolving Credit~~ Eurodollar Loan and each Competitive Bid Loan shall be deemed to be different Interest Periods even if they are coterminous). The aggregate principal amount of all Outstanding ~~Revolving~~ Credit ~~Obligations~~ Obligations, shall not exceed the Total Revolving Credit Commitment at any time. The aggregate principal amount of all outstanding Competitive Bid Loans shall not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any time. (b) When ~~the~~ either Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative Agent and the ~~Revolving Credit~~ Lenders notice (a “"Competitive Bid Quote Request”") to be received no later than ~~12:00 Noon~~ 11:00 a.m. Charlotte, North Carolina time on (A) the fourth Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the ~~Term Benchmark~~ Eurodollar Competitive Rate or (B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the ~~Borrower~~ Borrowers and the Administrative ~~Agent~~ Agent, with the consent of the Required Lenders, may agree). The ~~Borrower~~ Borrowers may request offers to make Competitive Bid Loans for up to three (3) different Interest Periods in a single notice; provided that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate borrowing (a “"Competitive Bid Borrowing”") and there shall not be outstanding at any one time more than ~~four~~ six (46) Competitive Bid Borrowings. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit G I attached hereto and incorporated herein by reference and shall specify as to each Competitive Bid Borrowing: (i) the proposed date of such borrowing, which shall be a Business Day; (ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least $10,000,000 (or in increments of $1,000,000 in excess thereof) but shall not cause the limits specified in Section ~~2.5(a~~2.02 (a) hereof to be violated; (iii) the duration of the Interest Period applicable thereto; (iv) whether the Competitive Bid Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the ~~Term Benchmark~~ Eurodollar Competitive Rate; (v) whether ~~the~~ a Borrower shall have the right to prepay a requested Competitive Bid Loan; and (vi) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the “"Quotation Date”"). Except as otherwise provided in this Section ~~2.5(b~~2.02(b), no more than two (2) Competitive Bid Quote Requests shall be given within five (5) Business Days (or such other number of days as the ~~Borrower~~ Borrowers and the Administrative ~~Agent~~ Agent, with the consent of the Required Lenders, may agree) of any other Competitive Bid Quote Request. (i) Each ~~Revolving Credit~~ Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if the ~~Borrower’s~~ Borrowers' request under Section ~~2.5(b~~2.02(b) hereof specified more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the ~~Borrower~~ Borrowers not later than 9:30 ~~A.M.~~ a.m. Charlotte, North Carolina time on (A) the third Business Day prior to the proposed date of borrowing, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the ~~Term Benchmark~~ Eurodollar Competitive Rate or (B) the Quotation Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the ~~Borrower~~ Borrowers and the Administrative ~~Agent~~ Agent, with the consent of the Required Lenders, may agree) provided that if ~~JPMorgan Chase Bank~~ NationsBank is receiving quotes as provided in Section ~~2.5(g~~2.02(g), any Competitive Bid Quote may be submitted by ~~JPMorgan Chase Bank~~ NationsBank (or its applicable Lending Office) only if ~~JPMorgan Chase Bank~~ NationsBank (or such applicable Lending Office) notifies the ~~Borrower~~ Borrowers of the terms of the offer contained therein not later than 9:15 ~~A.M.~~ a.m. Charlotte, North Carolina time on the Quotation Date. ~~Any~~ Subject to Articles IV, V and IX hereof, any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the ~~Borrower~~Borrowers. (ii) Each Competitive Bid Quote shall be substantially in the form of Exhibit H J attached hereto and incorporated herein by reference and shall specify: (A) the proposed date of borrowing and the Interest Period therefor; (B) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount shall be at least $5,000,000 (or in increments of $1,000,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans for which a Lender submits Competitive Bid Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested; (C) in the case of a Competitive Bid Quote for Competitive Bid Loans at an Absolute Rate, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Competitive Bid Loan (the “"Absolute Rate”"); (D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the ~~Term Benchmark~~ Eurodollar Competitive Rate, the positive or negative margin to be added to or deducted from the ~~Adjusted Term SOFR~~ Interbank Offered Rate; and (E) the identity of the quoting ~~▇▇▇▇▇▇~~Lender. Unless otherwise agreed by the Administrative Agent and the ~~Borrower~~Borrowers, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the ~~Borrower~~ Borrowers of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made. Any subsequent Competitive Bid Quote submitted by a ~~Revolving Credit~~ Lender that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request shall be disregarded by the ~~Borrower~~ Borrowers unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote. (d) The ~~Borrower~~ Borrowers shall (A) in the case of a Competitive Bid Loan at an Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than ~~12:00 Noon~~ 10:30 a.m. Charlotte, North Carolina time on ~~(A) in the case of a Competitive Bid Loan at an Absolute Rate,~~ the Quotation Date (or such other time and date as the ~~Borrower~~ Borrowers and the Administrative ~~Agent~~ Agent, with the consent of the Required Lenders, may agree) or (B) in the case of a Competitive Bid Loan at a ~~Term Benchmark~~ Eurodollar Competitive Rate, the third Business Day prior to the proposed date of borrowing) ), notify the Administrative Agent and ~~Revolving Credit~~ Lenders of (xA) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (yB) the respective principal amounts and Absolute Rates or ~~Term Benchmark~~ Eurodollar Competitive Rates, as the case may be, so offered by each ~~Revolving Credit~~ Lender (identifying the Lender that made each Competitive Bid Quote), and (zC) its acceptance or nonacceptance of the Competitive Bid Quotes. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The ~~Borrower~~ Borrowers may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $5,000,000 or in increments of $1,000,000 in excess thereof); provided that: (i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request; (ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or an increment of $1,000,000 in excess thereof) but shall not cause the limits specified in Section ~~2.5(a~~2.02 (a) hereof to be violated; (iii) except as provided below, acceptance of Competitive Bid Quotes for any Interest Period may be made only in ascending order of Absolute Rates or ~~Term Benchmark~~ Eurodollar Competitive Rates, as the case may be, beginning with the lowest rate so offered; and (iv) the ~~Borrower~~ Borrowers may not accept any Competitive Bid Quote where such Competitive Bid Quote fails to comply with Section ~~2.5(c)(ii~~2.02(c)(ii) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section ~~2.5(a~~2.02(a) hereof). Any of the conditions above notwithstanding, the ~~Borrower~~ Borrowers may, in ~~its~~ their sole discretion, accept a Competitive Bid Quote that does not contain the lowest Absolute Rate or ~~Term Benchmark~~ Eurodollar Competitive Rates, as the case may be, where acceptance of the Competitive Bid Quote containing the lowest Absolute Rate or ~~Term Benchmark~~ Eurodollar Competitive Rate, as the case may be, would ~~be less favorable to the Borrower or would~~ cause the principal amount of Outstanding ~~Revolving~~ Credit Obligations of a Lender or Lenders offering the lowest Absolute Rate or Eurodollar Competitive Rate, as the case may be, to exceed the Total Revolving Credit Commitment. If Competitive Bid Quotes are made by two or more ~~Revolving Credit~~ Lenders with the same Absolute Rates or ~~Term Benchmark~~ Eurodollar Competitive Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or ~~Term Benchmark~~ Eurodollar Competitive Rates, as the case may be, offered by any ~~Revolving Credit~~ Lender for such related Interest Period, the principal amount of Competitive Bid Loans in respect of which such Competitive Bid Quotes are accepted shall be allocated by the ~~Borrower~~ Borrowers among such Lenders as nearly as possible (in amounts of at least $1,000,000 or in increments of $100,000 in excess thereof) in proportion to the aggregate principal amount of such Competitive Bid Quotes. Determinations by the ~~Borrower~~ Borrowers of the amounts of Competitive Bid Loans and the lowest bid after adjustment as provided in Section ~~2.5(d)(iii~~2.02(d)(iii) shall be conclusive in the absence of manifest error. (e) Any ~~Revolving Credit~~ Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:00 ~~P.M.~~ p.m. Charlotte, North Carolina time on the date specified for the making of such Loan, make the amount of such Loan available to the applicable Borrower at the applicable Borrower's Account or otherwise as shall be directed by the Authorized Representative in Dollars and in immediately available funds. (f) From time to time, the ~~Borrower~~ Borrowers shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and maturities thereof. (g) The ~~Borrower~~ Borrowers may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A) in the case of a Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 ~~A.M.~~ a.m., Charlotte, North Carolina time on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the ~~Term Benchmark~~ Eurodollar Competitive Rate, by 10:00 ~~A.M.~~ a.m. Charlotte, North Carolina time on the date a Competitive ~~Bid~~ Quote is submitted, notify the ~~Borrower~~ Borrowers of the terms of any Competitive Bid Quote submitted by a ~~Revolving Credit~~ Lender that is in accordance with Section ~~2.5(c~~2.02(c) hereof. The Administrative Agent’s 's notice to the ~~Borrower~~ Borrowers shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or ~~Term Benchmark~~ Eurodollar Competitive Rate, as the case may be, offered by each ~~Revolving Credit~~ Lender (identifying the Lender that made each Competitive Bid Quote). Not later than ~~12:00 Noon~~ 10:30 a.m. Charlotte, North Carolina time on (A) the third Business Day prior to the proposed date of borrowing, in the case of Competitive Bid Loans at the ~~Term Benchmark~~ Eurodollar Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as the ~~Borrower~~ Borrowers and the Administrative ~~Agent~~ Agent, with the consent of the Required Lenders, may agree), the ~~Borrower~~ Borrowers shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the ~~Borrower~~ Borrowers to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid ~~Quotes~~ Quotes, which ~~the~~ each Borrower requires the Administrative Agent to issue pursuant to this paragraph (g), ~~the~~ such Borrower shall pay to the Administrative Agent for the account of the Administrative Agent a bid administration fee of $~~1,500~~1,500.00.

Appears in 1 contract

Sources: Reimbursement Agreement (Republic Industries Inc)

Competitive Bid Loans. (a) In addition to Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date ~~and provided no Default or Event of Default exists hereunder~~during which the conditions set forth in Section 2.03(b) below are satisfied, the Borrower may, as set forth in this Section ~~2.5~~2.03, request the ~~Revolving Credit~~ Lenders to make offers to make Competitive Bid Loans to the Borrower in Dollars. The ~~Revolving Credit~~ Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such ~~offers~~ offers, in the manner set forth in this Section ~~2.5~~2.03. There may be no more than ten (10) Interest Periods, and no more than one (1) one-week Interest Periods, for all Revolving Credit Loans and Competitive Bid Loans outstanding at the same time (for which purpose Interest Periods for each Term Benchmark Revolving Credit Loan and each The making of a Competitive Bid Loan by any Lender shall ~~be deemed to be different Interest Periods even if they are coterminous). The aggregate principal amount of all Outstanding~~ not reduce such Lender's Revolving Credit ~~Obligations shall not exceed~~ Commitment except as calculated based upon the Total Revolving Credit Commitment ~~at any time~~as reduced by such Competitive Bid Loan. ~~The aggregate principal amount~~ Competitive Bid Outstandings, together with the sum of all ~~outstanding Competitive Bid Loans~~ other Outstandings, shall not exceed ~~one hundred percent (100%) of~~ the Total Revolving Credit Commitment at any time. (b) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give the Administrative Agent ~~and~~ (which shall promptly notify the ~~Revolving Credit Lenders notice (a “Competitive~~ Lenders) either an Index Rate Bid ~~Quote Request”)~~ Loan Request to be received no later than ~~12:00 Noon on~~ 11:00 a.m. Charlotte, North Carolina time three (A3) LIBOR Business Days prior to the ~~fourth~~ date of borrowing proposed therein or an Absolute Rate Bid Loan Request to be received no later than 11:00 a.m. Charlotte, North Carolina time one (1) Business Day prior to the date of borrowing proposed ~~therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate~~ therein (or ~~(B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case,~~ such other time and date as the Borrower and the Administrative ~~Agent~~ Agent, with the consent of the Required Lenders, may agree). The Borrower may request offers to make Competitive Bid Loans for up to ~~three~~ four (34) different Interest Periods in a single ~~notice; provided that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate borrowing~~ notice (a “"Competitive Bid Borrowing~~”) and there shall not be outstanding at any one time more than four (4) Competitive Bid Borrowings~~"). Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit G I attached hereto and incorporated herein by reference and shall specify as to each Competitive Bid Borrowing: (i) the proposed date of such ~~borrowing~~Competitive Bid Borrowing, which shall be a Business ~~Day~~Day in the case of an Absolute Rate Bid Loan Request or a LIBOR Business Day in the case of an Index Rate Bid Loan Request; (ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least $~~10,000,000~~ 5,000,000 (or in ~~increments~~ integral multiples of $~~1,000,000~~ 100,000 in excess thereof) but shall not cause the limits specified in Section ~~2.5(a~~2.03(a) hereof to be violated; ; (iii) the duration of the Interest Period or Interest Periods applicable ~~thereto;~~ thereto (~~iv) whether the~~ which may be not less than 7 nor more than 360 days with respect to an Absolute Rate Competitive Bid ~~Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute~~ Loan and which must be one, two, three, six or twelve months with respect to an Index Rate ~~or the Term Benchmark Competitive Rate; (v) whether the Borrower shall have the right to prepay a requested~~ Competitive Bid Loan); and (viiv) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the “"Quotation Date”"). Except as otherwise provided in this Section 2.5(b), no more than two (2) Competitive Bid Quote Requests shall be given within five (5) Business Days (or such other number of days as the Borrower and the Administrative Agent may agree) of any other Competitive Bid Quote Request. (i) Each ~~Revolving Credit~~ Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if the Borrower’s 's request under Section ~~2.5(b~~2.03(b) hereof specified more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the ~~Borrower~~ Administrative Agent not later than ~~9:30 A.M.~~ 10:00 a.m. Charlotte, North Carolina time on ~~(A) the third Business Day prior to the proposed date of borrowing, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate or (B)~~ the Quotation ~~Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate~~ Date (~~or, in any such case,~~ or such other time and date as the Borrower and the Administrative ~~Agent~~ Agent, with the consent of the Required Lenders, may agree) provided that ~~if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g),~~ any Competitive Bid Quote may be submitted by ~~JPMorgan Chase Bank (or its applicable Lending Office)~~ NationsBank only if ~~JPMorgan Chase Bank (or such applicable Lending Office)~~ NationsBank notifies the Borrower of the terms of the offer contained therein not later than ~~9:15 A.M.~~ 9:45 a.m. Charlotte, North Carolina time on the Quotation Date. ~~Any~~ Subject to Articles IV, V and IX hereof, any Competitive Bid Quote so made shall be irrevocable except with the consent of the Administrative Agent given on the instructions of the Borrower. (iid) Each Competitive Bid Quote shall be substantially in the form of Exhibit H J attached hereto and incorporated herein by reference and shall specify: (Ai) the proposed date of borrowing and the Interest ~~Period therefor~~Periods applicable to all or each portion thereof; (Bii) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount shall be at least $~~5,000,000~~ 1,000,000 (or in ~~increments~~ integral multiples of $~~1,000,000~~ 100,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans for which a Lender submits Competitive Bid Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested; (Ciii) ~~in the case of a Competitive Bid Quote for Competitive Bid Loans at an Absolute Rate,~~ the rate of interest ~~per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%)~~ offered for each such Competitive Bid Loan (the “Absolute Rate”); (D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Term Benchmark Competitive Rate, the positive or negative margin to be added to or deducted from the Adjusted Term SOFR RateLoan; and (Eiv) the identity of the quoting ~~▇▇▇▇▇▇~~Lender. Unless otherwise agreed by the Administrative Agent and the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being madeRequest. Any subsequent Competitive Bid Quote submitted by a ~~Revolving Credit~~ Lender that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request shall be disregarded by the ~~Borrower~~ Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote. (de) The ~~Borrower~~ Administrative Agent shall as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than ~~12:00 Noon~~ 10:30 a.m. Charlotte, North Carolina time on ~~(A)~~ the Quotation Date), notify the Borrower in writing by facsimile of the ~~case~~ terms of a any Competitive Bid ~~Loan at an Absolute Rate, the Quotation Date (or such other time and date as~~ Quote submitted by a Lender that is in accordance with Section 2.03(c) hereof. The Administrative Agent's notice to the Borrower ~~and the Administrative Agent may agree) or~~ shall specify (B) in the case of a Competitive Bid Loan at a Term Benchmark Competitive Rate, the third Business Day prior to the proposed date of borrowing) notify the Administrative Agent and Revolving Credit Lenders of (xi) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received ~~as well as the ranges of bids submitted for each Interest Period requested,~~ and (yii) the respective principal ~~amounts~~ amount and ~~Absolute Rates or Term Benchmark Competitive Rates, as the case may be,~~ interest rate so offered by each ~~Revolving Credit~~ Lender (identifying the Lender that made each Competitive Bid Quote). As promptly as possible, the Administrative Agent shall forward to the Borrower copies of each Competitive Bid Quote submitted to the Administrative Agent. (f) Not later than 11:00 a.m. Charlotte, North Carolina time on the Quotation Date (or such other time and ~~(z)~~ date as the Borrower and the Administrative Agent, with the consent of the Required Lenders, may agree), the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance of the Competitive Bid ~~Quotes~~Quotes so notified to it pursuant to Section 2.03(e) hereof (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrower may accept ~~any~~ a Competitive Bid Quote ~~in whole or in part (provided that any~~ for the entire principal amount of the Competitive Bid ~~Quote accepted in part shall be at least $5,000,000~~ Loan so offered or ~~in increments~~ any portion thereof. The Borrower's acceptance of ~~$1,000,000 in excess thereof); provided that~~Competitive Bid Quotes is further subject to the following conditions: (i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request; (ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or ~~an increment~~ in integral multiples of $~~1,000,000~~ 100,000 in excess thereof) but shall not cause the limits specified in Section ~~2.5(a~~2.03(a) hereof to be violated; (iii) except as provided below, acceptance of Competitive Bid Quotes ~~for any Interest Period~~ may be made only in ascending order of ~~Absolute Rates or Term Benchmark Competitive Rates, as the case may be,~~ interest rates beginning with the lowest rate so offered; and (iv) the Borrower may not accept any Competitive Bid ~~Quote~~ Quotes where the Administrative Agent has correctly advised the Borrower that such Competitive Bid Quote fails to comply with Section ~~2.5(c)(ii~~2.03(d) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section ~~2.5(a~~2.03(a) hereof). Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, accept a Competitive Bid Quote that does not contain the lowest Absolute Rate or Term Benchmark Competitive Rates, as the case may be, where acceptance of the Competitive Bid Quote containing the lowest Absolute Rate or Term Benchmark Competitive Rate, as the case may be, would be less favorable to the Borrower or would cause the principal amount of Outstanding Revolving Credit Obligations to exceed the Total Revolving Credit Commitment. . (g) If Competitive Bid Quotes are made by two or more ~~Revolving Credit~~ Lenders with the same Absolute ~~Rates~~ Rate or ~~Term Benchmark Competitive Rates~~Index Rate, as ~~the case may be~~applicable, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are permitted to be accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or ~~Term Benchmark Competitive~~ Index Rates, as ~~the case may be~~applicable, offered by any ~~Revolving Credit~~ Lender for such related Interest Period, the principal amount of Competitive Bid Loans in respect of which such Competitive Bid Quotes are accepted shall be allocated by the Borrower among such Lenders as nearly as possible (in amounts of at least $1,000,000 or in ~~increments~~ integral multiples of $100,000 in excess thereof) in proportion to the aggregate principal amount of such Competitive Bid Quotes. Determinations by the Borrower of the amounts of Competitive Bid Loans and the lowest bid ~~after adjustment~~ as provided in Section ~~2.5(d)(iii~~2.03(f)(iii) hereof shall be conclusive in the absence of manifest error. (eh) Any ~~Revolving Credit~~ Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:00 ~~P.M.~~ p.m. Charlotte, North Carolina time on the date specified for the making of such Loan, make the amount of such Loan available to the ~~Borrower as shall be directed by~~ Administrative Agent at the ~~Authorized Representative~~ Principal Office in Dollars and in immediately available funds, for account of the Borrower. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an account specified by the Borrower. (fi) ~~From time to time, the Borrower shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of~~ The parties hereto agree that each Competitive Bid ~~Loans, including the amounts, interest rates, dates of borrowings and maturities thereof.~~ Loan (~~g) The Borrower may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A)~~ as defined in the ~~case~~ Prior Credit Agreement) advanced by a Lender under the Prior Credit Agreement and described on Schedule 2.03(i) hereto shall be deemed to be as of the Closing Date a Competitive Bid Loan ~~at the Absolute Rate, as promptly as practicable after the~~ hereunder and evidenced by such Lender's Competitive Bid Quote is submitted (but in no event later than 10:00 A.M. on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Term Benchmark Competitive Rate, by 10:00 A.M. on the date a Competitive Bid Quote is submitted, notify the Borrower of the terms of any Competitive Bid Quote submitted by a Revolving Credit Lender that is in accordance with Section 2.5(c) hereof. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rate, as the case may be, offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of borrowing, in the case of Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree), the Borrower shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid Quotes which the Borrower requires the Administrative Agent to issue pursuant to this paragraph (g), the Borrower shall pay to the Administrative Agent for the account of the Administrative Agent a bid administration fee of $1,500Note.

Appears in 1 contract

Sources: Credit Agreement (Gtech Holdings Corp)

Competitive Bid Loans. (a) In addition to making Revolving ~~Credit Loans, at any time prior~~ Loans pursuant to the Revolving Credit ~~Termination Date and provided no Default or Event of Default exists hereunder~~Commitments pursuant to Section 2.1 above, the Borrower ~~may, as~~ may on the terms and conditions set forth ~~in this Section 2.5,~~ herein request the ~~Revolving Credit~~ Lenders to make offers to make Competitive Bid Loans for amounts up to the ~~Borrower in Dollars~~aggregate amount of any Lender's unused Revolving Credit Commitment. The ~~Revolving Credit~~ Lenders may, but shall have no obligation to, make such ~~offers~~ offers, and the Borrower may, but shall have no obligation ~~to,~~ to accept any such offers in the manner set forth in this Section 2.5. There may be no more than ten (10) Interest Periods, and no more than one (1) one-week Interest Periods, for all Revolving Credit Loans and Competitive Bid Loans outstanding at the same time (for which purpose Interest Periods for each Term Benchmark Revolving Credit Loan and each Competitive Bid Loan shall be deemed to be different Interest Periods even if they are coterminous). The aggregate principal amount of all Outstanding Revolving Credit Obligations shall not exceed the Total Revolving Credit Commitment at any time. The aggregate principal amount of all outstanding Competitive Bid Loans shall not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any timeherein. (b) ~~When~~ In order to request Competitive Bids, the Borrower ~~wishes~~ shall telecopy to ~~request offers to make~~ the Lenders a duly completed Competitive Bid ~~Loans, it shall give~~ Request in the ~~Administrative Agent and the Revolving Credit Lenders notice (a “Competitive Bid Quote Request”)~~ form of Exhibit E attached hereto to be received no later than ~~12:00 Noon~~ noon (Nashville, Tennessee time) on ~~(A)~~ the ~~fourth Business Day prior to~~ day of the ~~date of borrowing~~ proposed ~~therein, in the case of a~~ Competitive Bid ~~Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate~~ Loan or (B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree)Loans. The Borrower may request offers to make Competitive Bid Loans for up to ~~three (3)~~ five different Interest Periods in a single notice; ~~provided~~ provided, however, that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid ~~Quote Request for a separate borrowing (a “~~Request. The Competitive Bid ~~Borrowing”~~Request shall in each case refer to this Agreement and specify (i) the date of such Loan or Loans (which shall be a Business Day) and ~~there shall not be outstanding at any~~ (ii) the aggregate principal amount thereof, and (iii) the Interest Period requested with respect thereto. (c) Each Lender may, in its sole discretion, make one ~~time~~ or more ~~than four (4)~~ Competitive Bids to the Borrower responsive to each Competitive Bid ~~Borrowings~~Request. Each ~~such~~ Competitive Bid ~~Quote Request shall~~ by a Lender must be received by the Borrower via telecopy, substantially in the form of Exhibit G F attached ~~hereto and shall specify as to each~~ hereto, not later than 12:30 p.m. (Nashville, Tennessee time) on the Business Day of the proposed Competitive Bid ~~Borrowing:~~ Loan. Competitive Bids that do not conform substantially to the format of Exhibit F may be rejected by the Borrower, and the Borrower shall notify the Lender making such nonconforming bid of such rejection as soon as practicable. Each Competitive Bid shall refer to this Agreement and specify (i) the ~~proposed date of such borrowing~~principal amount, ~~which shall be a Business Day;~~ (ii) the ~~aggregate amount~~ Competitive Bid Rate or Rates at which the Lender is prepared to make the Competitive Bid Rate Advance or Advances, and (iii) the Interest Period and the last day thereof. If any Lender shall elect not to make a Competitive Bid, such Lender shall so notify the Borrower via telecopy by the time specified above for submitting a Competitive Bid; provided, however, that failure by any Lender to give such notice shall not cause such Lender to be obligated to make any Competitive Bid Rate Advance as part of such Competitive Bid Borrowing, which shall be at least $10,000,000 (or in increments of $1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.5(a) hereof to be violated; (iii) the duration of the Interest Period applicable thereto; (iv) whether the Loan. A Competitive Bid Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Term Benchmark Competitive Rate; (v) whether the Borrower shall have the right to prepay a requested Competitive Bid Loan; and (vi) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the “Quotation Date”). Except as otherwise provided in this Section 2.5(b), no more than two (2) Competitive Bid Quote Requests shall be given within five (5) Business Days (or such other number of days as the Borrower and the Administrative Agent may agree) of any other Competitive Bid Quote Request. (i) Each Revolving Credit Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if the Borrower’s request under Section 2.5(b) hereof specified more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the Borrower not later than 9:30 A.M. on (A) the third Business Day prior to the proposed date of borrowing, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree) provided that if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g), any Competitive Bid Quote may be submitted by ~~JPMorgan Chase Bank~~ a Lender pursuant to this paragraph (~~or its applicable Lending Office~~c) only if JPMorgan Chase Bank (or such applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than 9:15 A.M. on the Quotation Date. Any Competitive Bid Quote so made shall be irrevocable ~~except with the consent of the Administrative Agent given on the instructions of the Borrower.~~ (~~ii) Each~~ absent manifest error). No Competitive Bid Quote shall be substantially in the form of Exhibit H attached hereto and shall specify: (A) the proposed date of borrowing and the Interest Period therefor; (B) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount shall be at least $5,000,000 (or in increments of $1,000,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans for which submitted by a Lender submits Competitive Bid Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested; (C) in the case of a Competitive Bid Quote for Competitive Bid Loans at an Absolute Rate, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Competitive Bid Loan (the “Absolute Rate”); (D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Term Benchmark Competitive Rate, the positive or negative margin to be added to or deducted from the Adjusted Term SOFR Rate; and (E) the identity of the quoting ▇▇▇▇▇▇. Unless otherwise agreed by the Administrative Agent and the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid ~~Quote~~ Request is being made. Any subsequent Competitive Bid Quote submitted by a Revolving Credit Lender that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request shall be disregarded by the Borrower unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote. (d) The Borrower ~~shall as promptly as practicable after~~ may, in its sole and absolute discretion, subject only to the provisions of this paragraph (d), accept or reject any Competitive Bid ~~Quote is submitted~~ referred to in paragraph (~~but~~ c) above. The Borrower shall notify each Lender by telephone, confirmed by telecopy, whether and to what extent it has decided to accept or reject any of or all the bids referred to in ~~any event~~ paragraph (c) above not later than ~~12:00 Noon~~ 1:00 p.m. (Nashville, Tennessee time) on ~~(A) in~~ the ~~case~~ Business Day of a the proposed Competitive Bid ~~Loan at an Absolute Rate~~Loan; provided, ~~the Quotation Date (or such other time and date as the Borrower and the Administrative Agent may agree) or (B) in the case of a Competitive Bid Loan at a Term Benchmark Competitive Rate~~however, the third Business Day prior to the proposed date of borrowing) notify the Administrative Agent and Revolving Credit Lenders of (x) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (y) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rates, as the case may be, so offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote), and (z) its acceptance or nonacceptance of the Competitive Bid Quotes. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $5,000,000 or in increments of $1,000,000 in excess thereof); provided that: (i) the ~~aggregate principal amount~~ failure by the Borrower to give such notice shall be deemed to be a rejection of ~~each Competitive Bid Borrowing may not exceed~~ all the ~~applicable amount set forth~~ bids referred to in ~~the related Competitive Bid Quote Request;~~ paragraph (c) above, (ii) the aggregate ~~principal~~ amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or an increment of $1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.5(a) hereof to be violated; (iii) except as provided below, acceptance of Competitive Bid Quotes for any Interest Period may be made only in ascending order of Absolute Rates or Term Benchmark Competitive Rates, as the case may be, beginning with the lowest rate so offered; and (iv) the Borrower may not accept any Competitive Bid Quote where such Competitive Bid Quote fails to comply with Section 2.5(c)(ii) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.5(a) hereof). Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, accept a Competitive Bid Quote that does not contain the lowest Absolute Rate or Term Benchmark Competitive Rates, as the case may be, where acceptance of the Competitive ~~Bid Quote containing the lowest Absolute Rate or Term Benchmark Competitive Rate, as the case may be, would be less favorable to~~ Bids accepted by the Borrower ~~or would cause~~ shall not exceed the principal amount ~~of Outstanding Revolving Credit Obligations to exceed~~ specified in the ~~Total Revolving Credit Commitment. If~~ Competitive Bid Quotes are made by two or more Revolving Credit Lenders with the same Absolute Rates or Term Benchmark Competitive Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Term Benchmark Competitive Rates, as the case may be, offered by any Revolving Credit Lender for such related Interest Period, the principal amount of Competitive Bid Loans in respect of which such Competitive Bid Quotes are accepted shall be allocated Request. A notice given by the Borrower ~~among such Lenders as nearly as possible~~ pursuant to this paragraph (in amounts of at least $1,000,000 or in increments of $100,000 in excess thereof) in proportion to the aggregate principal amount of such Competitive Bid Quotes. Determinations by the Borrower of the amounts of Competitive Bid Loans and the lowest bid after adjustment as provided in Section 2.5(d)(iiid) shall be ~~conclusive in the absence of manifest error~~irrevocable. (e) Any ~~Revolving Credit~~ Lender whose offer to make ~~any~~ a Competitive Bid ~~Loan~~ has been accepted shall, not later than ~~1:00 P.M.~~ 2:00 p.m. (Nashville, Tennessee time) on the proposed date ~~specified for~~ of the ~~making of such Loan~~Competitive Bid Loan borrowing, make the amount of such Competitive Bid Loan available to the Borrower ~~as shall be directed by the Authorized Representative in Dollars and~~ in immediately available ~~funds~~funds on the terms and conditions agreed to between the Borrower and the relevant Lender, provided, however, that the obligations of the Borrower with respect to all Competitive Bid Loans shall rank pari passu with the obligations of the Borrower to Lenders under any of the Loans. (f) ~~From time to time, the Borrower shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of~~ Each Competitive Bid ~~Loans~~Loan shall be repaid on the earlier of (i) a date agreed upon between Borrower and Lender, ~~including~~ and (ii) the ~~amounts, interest rates, dates of borrowings and maturities thereof~~Maturity Date. (g) The proceeds of each of the Competitive Bid Loans shall be used by the Borrower ~~may~~ for general corporate purposes, including working capital, Acquisitions permitted under this Agreement, and capital expenditures. (h) Any Lender's Competitive Bid Rate Advance shall reduce such Lender's obligation to lend its Pro Rata Share of the remaining unused Revolving Credit Loan Commitment. (i) The Borrower's obligations to pay the principal of, and interest on, the Competitive Bid Loans to each Lender shall be evidenced by the records of each Lender and by the Competitive Bid Note payable to such Lender (or the assignor of such Lender). On each occasion that the Borrower shall submit a request for a Revolving Credit Loan or a request for a Letter of Credit, the Borrower shall certify to Administrative Agent the total outstanding principal amount of all Competitive Bid Loans and the respective Lenders holding such Competitive Bid Loans (designating the amount held by each such Lender). (j) Notwithstanding any provision contained herein to the contrary, (i) upon the occurrence of an Event of Default and at any time thereafter while such Event of Default is continuing, and (ii) upon the delivery of written notice from the Administrative Agent to ~~receive~~ the ~~Competitive Bid Quotes, in which event~~ Lenders advising that the Administrative Agent ~~shall (A) in~~ is invoking the ~~case~~ requirements of ~~a Competitive Bid Loan at the Absolute Rate~~this paragraph, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 A.M. on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Term Benchmark Competitive Rate, by 10:00 A.M. on the date a Competitive Bid Quote is submitted, notify the Borrower each of the terms of any Competitive Bid Quote submitted by a Revolving Credit Lender that is in accordance with Section 2.5(c) hereof. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or Term Benchmark Competitive RateLenders, as the case may be, offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of borrowing, in the case of Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree), the Borrower shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid Quotes which the Borrower requires the Administrative Agent to issue pursuant to this paragraph (g), the Borrower shall pay to the Administrative Agent for the account of the Administrative Agent a bid administration fee of $1,500.including

Appears in 1 contract

Sources: Credit Agreement (Service Experts Inc)

Competitive Bid Loans. (a) In addition to ~~Revolving Credit~~ borrowings of Syndicated Loans, at any time prior to the Revolving Credit Termination Date ~~and provided no Default or Event of Default exists hereunder,~~ the ~~Borrower~~ Multicurrency Facilities Borrowers may, as set forth in this Section ~~2.5~~2.04, request the ~~Revolving Credit~~ Multicurrency Facilities Lenders to make offers to make Competitive Bid Loans to the ~~Borrower~~ Multicurrency Facilities Borrowers in Dollars. The ~~Revolving Credit~~ Multicurrency Facilities Lenders may, but shall have no obligation to, make such offers and the ~~Borrower~~ Multicurrency Facilities Borrowers may, but shall have no obligation to, accept any such offers in the manner set forth in this Section ~~2.5~~2.04. ~~There~~ Competitive Bid Loans shall be Absolute Rate Loans, provided that: (i) the Total Domestic Utilization shall not exceed the Total Domestic Revolving Credit Commitment; (ii) there may be no more than ~~ten~~ four (104) different Interest ~~Periods, and no more than one (1) one-week Interest Periods,~~ Periods for ~~all Revolving Credit Loans and~~ Competitive Bid Loans outstanding at the same time; (iii) the aggregate amount of outstanding Competitive Bid Loans of a Multicurrency Facilities Lender shall not exceed at any time an amount equal to $25,000,000; (~~for which purpose Interest Periods for each Term Benchmark Revolving Credit Loan and each~~ iv) no Competitive Bid Loan shall ~~be deemed~~ have a maturity date subsequent to ~~be different Interest Periods even if they are coterminous). The~~ the Revolving Credit Termination Date; and (v) the aggregate ~~principal~~ amount of ~~all Outstanding Revolving Credit Obligations~~ Competitive Bid Loans outstanding at any time shall not exceed $25,000,000 in the Total Revolving Credit Commitment at any time. The aggregate principal amount of all outstanding Competitive Bid Loans shall not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any timeaggregate. (b) When ~~the~~ a Borrower wishes to request offers to make Competitive Bid Loans, it shall give the ~~Administrative~~ Agent ~~and~~ (which shall promptly notify the ~~Revolving Credit Lenders~~ Multicurrency Facilities Lenders) notice (a “"Competitive Bid Quote Request”") to be received no later than ~~12:00 Noon~~ 10:00 A.M. on ~~(A)~~ the ~~fourth~~ Business Day ~~prior to~~ next preceding the date of borrowing proposed therein, ~~in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate~~ (or ~~(B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case,~~ such other time and date as ~~the~~ such Multicurrency Facilities Borrower and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree). The ~~Borrower~~ Multicurrency Facilities Borrowers may request offers to make Competitive Bid Loans for up to three (3) different Interest Periods in a single notice; provided that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate borrowing (a “"Competitive Bid Borrowing”") and there shall not be outstanding at any one time more than four (4) Competitive Bid Borrowings. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit ~~G attached~~ H hereto and shall specify as to each Competitive Bid Borrowing: (i) the proposed date of such borrowing, which shall be a Business Day; (ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least $~~10,000,000~~ 5,000,000 (or ~~in increments~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000) but shall not cause the limits specified in Section ~~2.5(a~~2.04(a) hereof to be violated; (iii) the duration of the Interest Period applicable thereto; (iv) whether the Competitive Bid Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Term Benchmark Competitive Rate; (v) whether the Borrower shall have the right to prepay a requested Competitive Bid Loan; and (viiv) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the “"Quotation Date”"). Except as otherwise provided in this Section ~~2.5(b~~2.04(b), no ~~more than two (2)~~ Competitive Bid Quote ~~Requests~~ Request shall be given within five (5) Business Days (or such other number of days as the applicable Multicurrency Facilities Borrower and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree) of any other Competitive Bid Quote Request. (i) Each ~~Revolving Credit~~ Multicurrency Facilities Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if ~~the~~ a Multicurrency Facilities Borrower’s 's request under Section ~~2.5(b~~2.04(b) hereof specified more than one Interest Period, such Multicurrency Facilities Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the ~~Borrower~~ Agent not later than ~~9:30~~ 10:00 A.M. Charlotte, North Carolina time on ~~(A) the third Business Day prior to the proposed date of borrowing, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate or (B)~~ the Quotation ~~Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate~~ Date (~~or, in any~~ or such case, such other time and date as the applicable Multicurrency Facilities Borrower and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree~~) provided~~ ); provided, that ~~if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g),~~ any Competitive Bid Quote may be submitted by ~~JPMorgan Chase Bank~~ the Agent (or its ~~applicable~~ Applicable Lending Office) only if ~~JPMorgan Chase Bank~~ the Agent (or such ~~applicable~~ Applicable Lending Office) notifies the Multicurrency Facilities Borrower of the terms of the offer contained therein not later than ~~9:15~~ 9:45 A.M. Charlotte, North Carolina time on the Quotation Date. ~~Any~~ Subject to Article IV, Article VII and X hereof, any Competitive Bid Quote so made shall be irrevocable except with the consent of the ~~Administrative~~ Agent given on the instructions of the applicable Multicurrency Facilities Borrower. (ii) Each Competitive Bid Quote shall be substantially in the form of Exhibit ~~H attached~~ I hereto and shall specify: (A) the proposed date of borrowing and the Interest Period therefor; (B) the principal amount of the Competitive Bid Loan for which each such ~~offer~~ order is being made, which principal amount shall be at least $5,000,000 (or ~~in increments~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000); provided that the aggregate principal amount of all Competitive Bid Loans for which a Lender submits Competitive Bid Quotes (x) may not exceed $25,000,000 and (y) may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested; (C) ~~in the case of a Competitive Bid Quote for Competitive Bid Loans at an Absolute Rate,~~ the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Competitive Bid Loan (the “"Absolute Rate”"); (D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Term Benchmark Competitive Rate, the positive or negative margin to be added to or deducted from the Adjusted Term SOFR Rate; and (ED) the identity of the quoting ~~▇▇▇▇▇▇~~Lender. Unless otherwise agreed by the ~~Administrative~~ Agent and the applicable Multicurrency Facilities Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the applicable Multicurrency Facilities Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made~~. Any subsequent~~ . (d) The Agent shall, as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 10:30 A.M. Charlotte, North Carolina time on the Quotation Date), notify the applicable Multicurrency Facilities Borrower of the terms (i) of any Competitive Bid Quote submitted by a ~~Revolving Credit~~ Multicurrency Facilities Lender that is in accordance with Section 2.04(c) hereof and (ii) of any Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Multicurrency Facilities Lender with respect to the same Competitive Bid Quote ~~Request~~ Request. Any such subsequent Competitive Bid Quote shall be disregarded by the ~~Borrower~~ Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote. The Agent's notice to the applicable Multicurrency Facilities Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which orders have been received and (B) the respective principal amounts and Absolute Rates so offered by each Multicurrency Facilities Lender (identifying the Multicurrency Facilities Lender that made each Competitive Bid Quote). (de) ~~The Borrower shall as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not~~ Not later than ~~12:00 Noon~~ 11:00 A.M. Charlotte, North Carolina time on ~~(A) in the case of a Competitive Bid Loan at an Absolute Rate,~~ the Quotation Date (or such other time and date as the applicable Multicurrency Facilities Borrower and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree~~) or (B) in the case of a Competitive Bid Loan at a Term Benchmark Competitive Rate~~), the ~~third Business Day prior to the proposed date of borrowing)~~ applicable Multicurrency Facilities Borrower shall notify the ~~Administrative~~ Agent ~~and Revolving Credit Lenders~~ of (x) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (y) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rates, as the case may be, so offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote), and (z) its acceptance or nonacceptance of the ~~Competitive Bid Quotes~~offers so notified to it pursuant to Section 2.04(d) hereof (and the failure of the applicable Multicurrency Facilities Borrower to give such notice by such time shall constitute nonacceptance) and the Agent shall promptly notify each affected Multicurrency Facilities Lender. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The applicable Borrower may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $5,000,000 or ~~in increments~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000); provided that: (i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request; (ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or ~~an increment~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000) but shall not cause the limits specified in Section ~~2.5(a~~2.04(a) hereof to be violated; (iii) ~~except as provided below,~~ acceptance of ~~Competitive Bid Quotes for any Interest Period~~ offers may be made only in ascending order of Absolute ~~Rates or Term Benchmark Competitive~~ Rates~~, as the case may be~~, beginning with the lowest rate so offered; and (iv) the ~~Borrower~~ Multicurrency Facilities Borrowers may not accept any ~~Competitive Bid Quote~~ offer where the Agent has correctly advised the Multicurrency Facilities Borrowers that such ~~Competitive Bid Quote~~ offer fails to comply with Section ~~2.5(c)(ii~~2.04(c)(ii) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section ~~2.5(a~~2.04(a) hereof). Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, accept a Competitive Bid Quote that does not contain the lowest Absolute Rate or Term Benchmark Competitive Rates, as the case may be, where acceptance of the Competitive Bid Quote containing the lowest Absolute Rate or Term Benchmark Competitive Rate, as the case may be, would be less favorable to the Borrower or would cause the principal amount of Outstanding Revolving Credit Obligations to exceed the Total Revolving Credit Commitment. If ~~Competitive Bid Quotes~~ offers are made by two or more ~~Revolving Credit~~ Lenders with the same Absolute ~~Rates or Term Benchmark Competitive~~ Rates~~, as the case may be~~, for a greater aggregate principal amount than the amount in respect of which ~~Competitive Bid Quotes~~ offers are accepted for the related Interest Period after the acceptance of all ~~Competitive Bid Quotes~~offers, if any, of all lower Absolute Rates ~~or Term Benchmark Competitive Rates, as the case may be,~~ offered by any ~~Revolving Credit~~ Multicurrency Facilities Lender for such related Interest Period, the principal amount of Competitive Bid Loans in respect of which such ~~Competitive Bid Quotes~~ offers are accepted shall be allocated by the applicable Multicurrency Facilities Borrower among such Multicurrency Facilities Lenders as nearly as possible (in amounts of at least $~~1,000,000~~ 5,000,000 or ~~in increments~~ larger multiples of $~~100,000 in excess thereof~~1,000,000) in proportion to the aggregate principal amount of such ~~Competitive Bid Quotes~~offers. Determinations by the applicable Multicurrency Facilities Borrower of the amounts of Competitive Bid Loans and the lowest bid after adjustment as provided in Section ~~2.5(d)(iii~~2.04(e)(iii) shall be conclusive in the absence of manifest error. (ef) Any ~~Revolving Credit~~ Multicurrency Facilities Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:00 P.M. Charlotte, North Carolina time on the date specified for the making of such Loan, make the amount of such Loan available to the ~~Borrower as shall be directed by~~ Agent at the ~~Authorized Representative~~ Principal Office in Dollars and in immediately available funds~~. (f) From time to time~~, the Borrower shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and maturities thereof. (g) The Borrower may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A) in the case of a Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 A.M. on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Term Benchmark Competitive Rate, by 10:00 A.M. on the date a Competitive Bid Quote is submitted, notify the Borrower of the terms of any Competitive Bid Quote submitted by a Revolving Credit Lender that is in accordance with Section 2.5(c) hereof. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rate, as the case may be, offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of borrowing, in the case of Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree), the Borrower shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid Quotes which the Borrower requires the Administrative Agent to issue pursuant to this paragraph (g), the Borrower shall pay to the Administrative Agent for the account of the ~~Administrative~~ applicable Multicurrency Facilities Borrower. The amount so received by the Agent ~~a bid administration fee~~ shall, subject to the terms and conditions of ~~$1,500~~this Agreement, be made available to the applicable Multicurrency Facilities Borrower on such date by depositing the same, in Dollars and in immediately available funds, in an account of the Multicurrency Facilities Borrowers maintained at the Principal Office or otherwise as shall be directed by the applicable Multicurrency Facilities Borrower.

Appears in 1 contract

Sources: Revolving Credit and Reimbursement Agreement (Tech Data Corp)

Competitive Bid Loans. (a) In addition to Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date and provided no Default or Event of Default exists hereunder, ~~the Borrower~~ Greenfield may, as set forth in this Section ~~2.5~~2.02, request the ~~Revolving Credit~~ Lenders to make offers to make Competitive Bid Loans to ~~the Borrower~~ Greenfield in Dollars. The ~~Revolving Credit~~ Lenders may, but shall have no obligation to, make such offers and ~~the Borrower~~ Greenfield may, but shall have no obligation to, accept any such offers in the manner set forth in this Section ~~2.5~~2.02. There may be no more than ~~ten~~ thirteen (1013) different Interest ~~Periods, and no more than one (1) one-week Interest Periods,~~ Periods for ~~all~~ both Revolving Credit Loans and Competitive Bid Loans outstanding at the same time (for which purpose Interest Periods for each ~~Term Benchmark Revolving Credit~~ Eurodollar Loan and each Competitive Bid Loan shall be deemed to be different Interest Periods even if they are coterminous). The aggregate principal amount of all outstanding Competitive Bid Loans, together with the Dollar Value of all other Outstanding ~~Revolving~~ Credit ~~Obligations~~ Obligations, shall not exceed ~~the Total Revolving Credit Commitment at any time. The aggregate principal amount of all outstanding Competitive Bid Loans shall not exceed one hundred percent (100%) of~~ the Total Revolving Credit Commitment at any time. (b) When ~~the Borrower~~ Greenfield wishes to request offers to make Competitive Bid Loans, it shall give the ~~Administrative~~ Agent ~~and~~ (which shall promptly notify the ~~Revolving Credit Lenders~~ Lenders) notice (a “"Competitive Bid Quote Request”") to be received no later than ~~12:00 Noon~~ 11:00 a.m. Charlotte, North Carolina time on ~~(A)~~ the ~~fourth~~ Business Day ~~prior to~~ next preceding the date of borrowing proposed ~~therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate~~ therein (or ~~(B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case,~~ such other time and date as ~~the Borrower~~ Greenfield and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree). ~~The Borrower~~ Greenfield may request offers to make Competitive Bid Loans for up to three (3) different Interest Periods in a single notice; provided that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate borrowing (a “"Competitive Bid Borrowing”") and there shall not be outstanding at any one time more than four (4) Competitive Bid Borrowings. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit ~~G attached hereto and shall specify as to each Competitive Bid Borrowing:~~J attached (i) the proposed date of such borrowing, which shall be a Business Day; (ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least $~~10,000,000~~ 5,000,000 (or in increments of $1,000,000 in excess thereof) but shall not cause the limits specified in Section ~~2.5(a~~2.02 (a) hereof to be violated; (iii) the duration of the Interest Period or Interest Periods applicable thereto; (iv) whether the Competitive Bid Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Term Benchmark Competitive Rate; (v) whether the Borrower shall have the right to prepay a requested Competitive Bid Loan; and (viiv) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the “"Quotation Date”"). Except as otherwise provided in this Section ~~2.5(b~~2.02(b), no ~~more than two (2)~~ Competitive Bid Quote ~~Requests~~ Request shall be given within five (5) Business Days (or such other number of days as ~~the Borrower~~ Greenfield and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree) of any other Competitive Bid Quote Request. (i) Each ~~Revolving Credit~~ Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if ~~the Borrower’s~~ Greenfield's request under Section ~~2.5(b~~2.02(b) hereof specified more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the ~~Borrower~~ Agent not later than ~~9:30 A.M.~~ 10:00 a.m. Charlotte, North Carolina time on ~~(A) the third Business Day prior to the proposed date of borrowing, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate or (B)~~ the Quotation ~~Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate~~ Date (~~or, in any such case,~~ or such other time and date as ~~the Borrower~~ Greenfield and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree) provided that ~~if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g),~~ any Competitive Bid Quote may be submitted by ~~JPMorgan Chase Bank~~ NationsBank (or its ~~applicable~~ Applicable Lending Office) only if ~~JPMorgan Chase Bank~~ NationsBank (or such ~~applicable~~ Applicable Lending Office) notifies ~~the Borrower~~ Greenfield of the terms of the offer contained therein not later than ~~9:15 A.M.~~ 9:45 a.m. Charlotte, North Carolina time on the Quotation Date. ~~Any~~ Subject to Articles IV, V and IX hereof, any Competitive Bid Quote so made shall be irrevocable except with the consent of the ~~Administrative~~ Agent given on the instructions of ~~the Borrower~~Greenfield. (ii) Each Competitive Bid Quote shall be substantially in the form of Exhibit H K attached hereto and incorporated herein by reference and shall specify: (A) the proposed date of borrowing and the Interest Period therefor; (B) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount shall be at least $5,000,000 (or in increments of $1,000,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans for which a Lender submits Competitive Bid Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested; (C) in the case of a Competitive Bid Quote for Competitive Bid Loans at an Absolute Rate, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Competitive Bid Loan (the “Absolute Rate”); (D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Term Benchmark Competitive Rate, the positive or negative margin to be added to or deducted from the Adjusted Term SOFR Rate; and (E) the identity of the quoting ▇▇▇▇▇▇. Unless otherwise agreed by the Administrative Agent and the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made. Any subsequent Competitive Bid Quote submitted by a Revolving Credit Lender that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request shall be disregarded by the Borrower unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote. (d) The Borrower shall as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 12:00 Noon on (A) in the case of a Competitive Bid Loan at an Absolute Rate, the Quotation Date (or such other time and date as the Borrower and the Administrative Agent may agree) or (B) in the case of a Competitive Bid Loan at a Term Benchmark Competitive Rate, the third Business Day prior to the proposed date of borrowing) notify the Administrative Agent and Revolving Credit Lenders of (x) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (y) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rates, as the case may be, so offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote), and (z) its acceptance or nonacceptance of the Competitive Bid Quotes. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $5,000,000 or in increments of $1,000,000 in excess thereof); provided that: (i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request; (ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or an increment of $1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.5(a) hereof to be violated; (iii) except as provided below, acceptance of Competitive Bid Quotes for any Interest Period may be made only in ascending order of Absolute Rates or Term Benchmark Competitive Rates, as the case may be, beginning with the lowest rate so offered; and (iv) the Borrower may not accept any Competitive Bid Quote where such Competitive Bid Quote fails to comply with Section 2.5(c)(ii) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.5(a) hereof). Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, accept a Competitive Bid Quote that does not contain the lowest Absolute Rate or Term Benchmark Competitive Rates, as the case may be, where acceptance of the Competitive Bid Quote containing the lowest Absolute Rate or Term Benchmark Competitive Rate, as the case may be, would be less favorable to the Borrower or would cause the principal amount of Outstanding Revolving Credit Obligations to exceed the Total Revolving Credit Commitment. If Competitive Bid Quotes are made by two or more Revolving Credit Lenders with the same Absolute Rates or Term Benchmark Competitive Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Term Benchmark Competitive Rates, as the case may be, offered by any Revolving Credit Lender for such related Interest Period, the principal amount of Competitive Bid Loans in respect of which such Competitive Bid Quotes are accepted shall be allocated by the Borrower among such Lenders as nearly as possible (in amounts of at least $1,000,000 or in increments of $100,000 in excess thereof) in proportion to the aggregate principal amount of such Competitive Bid Quotes. Determinations by the Borrower of the amounts of Competitive Bid Loans and the lowest bid after adjustment as provided in Section 2.5(d)(iii) shall be conclusive in the absence of manifest error. (e) Any Revolving Credit Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than 1:00 P.M. on the date specified for the making of such Loan, make the amount of such Loan available to the Borrower as shall be directed by the Authorized Representative in Dollars and in immediately available funds. (f) From time to time, the Borrower shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and maturities thereof. (g) The Borrower may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A) in the case of a Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 A.M. on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Term Benchmark Competitive Rate, by 10:00 A.M. on the date a Competitive Bid Quote is submitted, notify the Borrower of the terms of any Competitive Bid Quote submitted by a Revolving Credit Lender that is in accordance with Section 2.5(c) hereof. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rate, as the case may be, offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of borrowing, in the case of Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree), the Borrower shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid Quotes which the Borrower requires the Administrative Agent to issue pursuant to this paragraph (g), the Borrower shall pay to the Administrative Agent for the account of the Administrative Agent a bid administration fee of $1,500.

Appears in 1 contract

Sources: Credit Facilities and Reimbursement Agreement (Greenfield Industries Inc /De/)

Competitive Bid Loans. (a) In addition to borrowings of Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date ~~and provided no Default or Event of Default exists hereunder,~~ the Borrower may, as set forth in this Section ~~2.5~~2.03, request the ~~Revolving Credit~~ Lenders to make offers to make Competitive Bid Loans to the Borrower in Dollars. The ~~Revolving Credit~~ Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section ~~2.5~~2.03. ~~There may be no more than ten (10) Interest Periods, and no more than one (1) one-week Interest Periods, for all~~ The making of a Competitive Bid Loan by any Lender shall not reduce such Lender's available Revolving Credit ~~Loans and~~ Commitment except as a result of such Competitive Bid ~~Loans outstanding at~~ Loan reducing the ~~same time (for which purpose Interest Periods for each Term Benchmark~~ availability under the Total Revolving Credit ~~Loan and~~ Commitment. Immediately after giving effect to each Competitive Bid ~~Loan shall be deemed to be different Interest Periods even if they are coterminous). The aggregate principal amount of all Outstanding Revolving Credit Obligations~~ Loan, Total Outstandings shall not exceed the Total Revolving Credit ~~Commitment at any time~~Commitment. ~~The aggregate principal amount of all outstanding~~ Each Competitive Bid ~~Loans shall not exceed one hundred percent (100%)~~ Loan may be repaid only on the last day of the ~~Total Revolving Credit Commitment at any time~~Interest Period with respect thereto unless such payment is accompanied by the additional payment, if any, required by Section 4.05. (b) When the Borrower wishes to request offers from Lenders to make Competitive Bid Loans, it shall give the ~~Administrative~~ Agent ~~and~~ (which shall promptly notify the ~~Revolving Credit Lenders~~ Lenders) notice (a “"Competitive Bid Quote Request”") to be received no later than ~~12:00 Noon~~ 10:00 A.M. on ~~(A)~~ the ~~fourth~~ Business Day ~~prior to~~ immediately preceding the date of borrowing proposed ~~therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate~~ therein (or ~~(B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case,~~ such other time and date as the Borrower and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree). The Borrower may request offers from Lenders to make Competitive Bid Loans for up to ~~three~~ four (34) different Interest Periods in a single notice; provided that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate borrowing (a “"Competitive Bid Borrowing”") ~~and there shall not be outstanding at any~~ of one ~~time~~ or more ~~than four (4)~~ Competitive Bid ~~Borrowings~~Loans from the Lenders. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit ~~G attached~~ D hereto and shall specify as to each Competitive Bid Borrowing: (i) the proposed date of such ~~borrowing~~Competitive Bid Borrowing, which shall be a Business Day; (ii) the ~~aggregate~~ amount of such Competitive Bid Borrowing, which shall be at least $~~10,000,000~~ 5,000,000 (or ~~in increments~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000) but shall not cause the limits specified in Section ~~2.5(a~~2.03(a) ~~hereof~~ to be violated; (iii) the duration of the Interest Period applicable thereto; (iv) whether the Competitive Bid Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Term Benchmark Competitive Rate; (v) whether the Borrower shall have the right to prepay a requested Competitive Bid Loan; and (viiv) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the “"Quotation Date”"). Except as otherwise provided in this Section ~~2.5(b~~2.03(b), no ~~more than two (2)~~ Competitive Bid Quote ~~Requests~~ Request shall be given within five (5) Business Days (or such other number of days as the Borrower and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree) of any other Competitive Bid Quote Request. (i) Each ~~Revolving Credit~~ Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid ~~Loan~~ Loan, in response to any Competitive Bid Quote Request; provided that, if the Borrower’s 's request under Section ~~2.5(b~~2.03(b) ~~hereof specified~~ specifies more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the ~~Borrower~~ Agent not later than ~~9:30~~ 10:00 A.M. Charlotte, North Carolina time on ~~(A) the third Business Day prior to the proposed date of borrowing, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate or (B)~~ the Quotation ~~Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate~~ Date (~~or, in any such case,~~ or such other time and date as the Borrower and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree~~) provided~~ ; the Agent shall promptly notify all Lenders of such other agreed upon time and date); provided, that ~~if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g),~~ any Competitive Bid Quote may be submitted by ~~JPMorgan Chase Bank~~ the Agent (or its ~~applicable~~ Applicable Lending Office) only if ~~JPMorgan Chase Bank~~ the Agent (or such ~~applicable~~ Applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than ~~9:15~~ 9:45 A.M. (or 15 minutes prior to such other agreed upon time) Charlotte, North Carolina time on the Quotation Date. ~~Any~~ Subject to the express provisions of this Agreement, any Competitive Bid Quote so made shall be irrevocable except with the consent of the ~~Administrative~~ Agent given on at the ~~instructions~~ instruction of the Borrower. (ii) Each Competitive Bid Quote shall be substantially in the form of Exhibit ~~H attached~~ F hereto and shall specify: (A) the proposed date of borrowing and the Interest Period therefor; (B) the principal amount of the Competitive Bid Loan for which ~~each~~ such offer is being made, which principal amount shall be at least $~~5,000,000~~ 1,000,000 (or ~~in increments~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000); provided that (x) the aggregate principal amount of all Competitive Bid Loans for which a Lender submits Competitive Bid Quotes in response to a Competitive Bid Quote Request may not exceed the principal amount of the Competitive Bid Borrowing for ~~a particular~~ the Interest Period for which offers were requested, and (y) the limits specified in Section 2.03(a) shall not be exceeded; (C) ~~in the case of a Competitive Bid Quote for Competitive Bid Loans at an Absolute Rate,~~ the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Competitive Bid Loan (the “"Absolute Rate”"); (D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Term Benchmark Competitive Rate, the positive or negative margin to be added to or deducted from the Adjusted Term SOFR Rate; and (ED) the identity of the quoting ~~▇▇▇▇▇▇~~Lender. Unless otherwise agreed by the ~~Administrative~~ Agent and the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote ~~Request~~ Request, and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made~~. Any subsequent~~ . (d) The Agent shall, as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 10:30 A.M. Charlotte, North Carolina time on the Quotation Date), notify the Borrower of the terms (i) of any Competitive Bid Quote submitted by a ~~Revolving Credit~~ Lender that is in accordance with Section 2.03(c) and (ii) of any Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote ~~Request~~ Request. Any such subsequent Competitive Bid Quote shall be disregarded by the ~~Borrower~~ Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote. The Agent's notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Loans for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates so offered by each Lender (identifying the Lender that made each Competitive Bid Quote). (de) ~~The Borrower shall as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not~~ Not later than ~~12:00 Noon~~ 11:00 A.M. Charlotte, North Carolina time on ~~(A) in the case of a Competitive Bid Loan at an Absolute Rate,~~ the Quotation Date (or such other time and date as the Borrower and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree~~) or (B) in the case of a Competitive Bid Loan at a Term Benchmark Competitive Rate~~), the ~~third Business Day prior to the proposed date of borrowing)~~ Borrower shall notify the ~~Administrative~~ Agent ~~and Revolving Credit Lenders~~ of (x) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (y) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rates, as the case may be, so offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote), and (z) its acceptance or nonacceptance of the Competitive Bid ~~Quotes~~Quotes so notified to it pursuant to Section 2.03(d) (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Agent shall promptly notify each affected Lender. In the case of acceptance, such notice shall specify the aggregate principal amount of ~~offers~~ Competitive Bid Quotes for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $~~5,000,000~~ 1,000,000 or ~~in increments~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000); provided that: (i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request; (ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or ~~an increment~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000) but shall not cause the limits specified in Section ~~2.5(a~~2.03(a) ~~hereof~~ to be violated; (iii) ~~except as provided below,~~ acceptance of Competitive Bid Quotes ~~for any Interest Period~~ may be made only in ascending order of Absolute ~~Rates or Term Benchmark Competitive~~ Rates~~, as the case may be~~, beginning with the lowest rate so offered; and (iv) the Borrower may not accept any Competitive Bid Quote where the Agent has correctly advised the Borrower that such ~~Competitive Bid Quote~~ offer fails to comply with Section ~~2.5(c)(ii~~2.03(c)(ii) ~~hereof~~ or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section ~~2.5(a) hereof~~2.03(a). Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, accept a Competitive Bid Quote that does not contain the lowest Absolute Rate or Term Benchmark Competitive Rates, as the case may be, where acceptance of the Competitive Bid Quote containing the lowest Absolute Rate or Term Benchmark Competitive Rate, as the case may be, would be less favorable to the Borrower or would cause the principal amount of Outstanding Revolving Credit Obligations to exceed the Total Revolving Credit Commitment). If Competitive Bid Quotes are made by two or more ~~Revolving Credit~~ Lenders with the same Absolute ~~Rates or Term Benchmark Competitive~~ Rates, ~~as the case may be,~~ for ~~a greater~~ an aggregate principal amount that is greater than the amount in respect of which Competitive Bid Quotes are accepted for the related Interest Period (after taking into account the acceptance of all Competitive Bid ~~Quotes~~Quotes with lower Absolute Rates, if any, ~~of all lower Absolute Rates or Term Benchmark Competitive Rates, as the case may be,~~ offered by any ~~Revolving Credit~~ Lender for such related Interest Period), then the principal amount of Competitive Bid Loans in respect of which such Competitive Bid Quotes are accepted shall be allocated by the Borrower among such Lenders as nearly as possible (in amounts of at least $~~1,000,000 or in increments of $100,000 in excess thereof~~1,000,000) in proportion to the aggregate principal amount of such Competitive Bid Quotes. Determinations by the Borrower of the amounts of Competitive Bid Loans and the ~~lowest bid after adjustment~~ Absolute Rates as provided in Section ~~2.5(d)(iii~~2.03(e)(iii) shall be conclusive in the absence of manifest error. (ef) Any ~~Revolving Credit~~ Lender whose ~~offer to make any~~ Competitive Bid ~~Loan~~ Quote has been accepted in accordance with Section 2.03(e) shall, not later than 1:00 P.M. Charlotte, North Carolina time on the date specified for the making of such Competitive Bid Loan, make the amount of such Competitive Bid Loan as accepted by the Borrower available to the ~~Borrower as shall be directed by~~ Agent at the ~~Authorized Representative~~ Principal Office in Dollars and in immediately available funds~~. (f) From time to time~~, the Borrower shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and maturities thereof. (g) The Borrower may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A) in the case of a Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 A.M. on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Term Benchmark Competitive Rate, by 10:00 A.M. on the date a Competitive Bid Quote is submitted, notify the Borrower of the terms of any Competitive Bid Quote submitted by a Revolving Credit Lender that is in accordance with Section 2.5(c) hereof. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rate, as the case may be, offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of borrowing, in the case of Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree), the Borrower shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid Quotes which the Borrower requires the Administrative Agent to issue pursuant to this paragraph (g), the Borrower shall pay to the Administrative Agent for the account of the ~~Administrative~~ Borrower. The amount so received by the Agent ~~a bid administration fee~~ shall, subject to the terms and conditions of ~~$1,500~~this Agreement, be made available to the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in the Borrower's Account or otherwise as shall be directed by the Borrower.

Appears in 1 contract

Sources: Credit Agreement (Saks Inc)

Competitive Bid Loans. (a) In addition to ~~Revolving Credit Loans~~borrowings of Committed Loans described below, at any time prior to the ~~Revolving Credit Termination~~ Maturity Date ~~and provided no Default or Event of Default exists hereunder,~~ the ~~Borrower may, as set forth in this Section 2.5,~~ Borrowers may request the ~~Revolving Credit~~ Lenders to make offers to make Competitive Bid Loans to the ~~Borrower in Dollars~~Borrowers. The ~~Revolving Credit~~ Lenders may, but shall have no obligation to, make such offers and the ~~Borrower~~ Borrowers may, but shall have no obligation to, accept any such offers in the manner set forth in this Section ~~2.5~~2.1. ~~There~~ Competitive Bid Loans shall be Absolute Rate Loans, provided that: (i) there may be no more than ~~ten (10)~~ seven different Interest ~~Periods, and no more than one (1) one-week Interest Periods,~~ Periods for ~~all Revolving Credit~~ both Committed Loans and Competitive Bid Loans combined outstanding at the same time (for which purpose Interest Periods ~~for each Term Benchmark Revolving Credit Loan and each Competitive Bid Loan~~ described in different lettered clauses of the definition of the term “Interest Period” shall be deemed to be different Interest Periods even if they are coterminous)~~. The~~ ; and (ii) the aggregate principal amount of all ~~Outstanding Revolving~~ Competitive Bid Loans, together with the sum of the Letter of Credit ~~Obligations shall not exceed~~ Liabilities, the ~~Total Revolving Credit Commitment at any time. The~~ aggregate principal amount of all outstanding ~~Competitive Bid~~ Committed Loans and Swingline Loans and the total outstandings under ALFA’s commercial paper and variable rate demand note programs shall not exceed ~~one hundred percent (100%)~~ the aggregate amount of the Total Revolving Credit Commitment at ~~any~~ such time. (b) When the ~~Borrower wishes~~ Borrowers wish to request offers to make Competitive Bid Loans, it ALFA shall give the ~~Administrative~~ Agent ~~and~~ (which shall promptly notify the ~~Revolving Credit Lenders~~ Lenders) notice (a “Competitive Bid Quote Request”) to be received no by the Agent not later than ~~12:00 Noon~~ 10:00 a.m. Montgomery, Alabama time, on ~~(A)~~ the ~~fourth~~ Business Day ~~prior to~~ next preceding the date of borrowing proposed ~~therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate~~ therein (or ~~(B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case,~~ such other time and date as ~~the Borrower~~ ALFA and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may ~~agree~~approve). ~~The Borrower~~ ALFA may request offers to make Competitive Bid Loans for ~~up to three~~ not more than two (32) different Interest Periods in a single ~~notice~~Competitive Bid Quote Request (for which purpose Interest Periods in different lettered clauses of the definition of the term “Interest Period” shall be deemed to be different Interest Periods even if they are coterminous); provided that the request for each separate Interest Period shall ~~be deemed to be~~ constitute a separate Competitive Bid Quote Request for a separate borrowing (a “Competitive Bid Borrowing”) ), and there shall not be outstanding at any one time more than ~~four (4)~~ three Competitive Bid Borrowings. Each ~~such~~ Competitive Bid Quote Request shall be substantially in the form of ~~Exhibit G attached~~ Schedule 2.1(b) hereto and shall specify as to each Competitive Bid Borrowing: (i) the proposed date of such borrowing, which shall be a Business Day; (ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least $10,000,000 ~~(or~~ and in ~~increments~~ multiples of $1,000,000 ~~in excess thereof)~~ but shall not cause the limits specified in Section ~~2.5(a~~2.1(a) hereof to be ~~violated~~exceeded; (iii) the duration of the Interest Period applicable thereto; (iv) whether the Competitive Bid Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Term Benchmark Competitive Rate; (v) whether the Borrower shall have the right to prepay a requested Competitive Bid Loan; and (viiv) the date on which the Competitive Bid ~~Quotes are~~ Quote is to be submitted ~~if it is before the proposed date of borrowing~~ (~~the date on which such Competitive Bid Quotes are to be submitted is called~~ the “Quotation Date”). Except as otherwise provided in this Section ~~2.5(b~~2.1(b), no ~~more than two (2)~~ Competitive Bid Quote ~~Requests~~ Request shall be given within five (5) Business Days (or such other number of days as ~~the Borrower~~ ALFA and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may ~~agree~~approve) of any other Competitive ~~Bid~~ Quote Request. (i) Each ~~Revolving Credit~~ Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if ~~the Borrower~~ALFA’s request under Section ~~2.5(b~~2.1(b) hereof specified more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the ~~Borrower~~ Agent not later than ~~9:30 A.M.~~ 10:00 a.m. Montgomery, Alabama time on ~~(A) the third Business Day prior to the proposed date of borrowing, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate or (B)~~ the Quotation ~~Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate~~ Date (~~or, in any such case,~~ or such other time and date as ~~the Borrower~~ ALFA and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may ~~agree)~~ approve), provided that ~~if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g), any~~ AmSouth may submit a Competitive Bid Quote ~~may be submitted by JPMorgan Chase Bank (or its applicable Lending Office)~~ only if ~~JPMorgan Chase Bank (or such applicable Lending Office)~~ it notifies ~~the Borrower~~ ALFA of the terms of the offer contained therein not later than ~~9:15 A.M.~~ 8:45 a.m. Montgomery, Alabama time on the Quotation Date. Any Competitive Bid Quote so made shall be irrevocable except with the consent of the ~~Administrative~~ Agent given on the instructions of the ~~Borrower~~Borrowers. (ii) Each Competitive Bid Quote shall be substantially in the form of ~~Exhibit H attached~~ Schedule 2.1(c) hereto and shall specify: (A) the proposed date of borrowing and the Interest Period therefor; (B) the principal amount of the Competitive Bid Loan for which each such ~~offer~~ Competitive Bid Quote is being made, which principal amount shall be at least $~~5,000,000~~ 10,000,000 (or ~~in increments~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000); provided that the aggregate principal amount of all Competitive Bid Loans for which a Lender submits Competitive Bid Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested; (C) ~~in the case of a Competitive Bid Quote for Competitive Bid Loans at an Absolute Rate,~~ the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Competitive Bid Loan (the “Absolute Rate”); (D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Term Benchmark Competitive Rate, the positive or negative margin to be added to or deducted from the Adjusted Term SOFR Rate; and (ED) the identity of the quoting ~~▇▇▇▇▇▇~~Lender. Unless otherwise agreed by the ~~Administrative~~ Agent and ~~the Borrower~~ALFA, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by ~~the Borrower~~ ALFA of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made~~. Any subsequent~~ . (d) The Agent shall, as promptly as practicable after a Competitive Bid Quote is submitted (but in any event not later than 10:30 a.m. Montgomery, Alabama time on the Quotation Date), notify ALFA of the terms (i) of any Competitive Bid Quote submitted by a ~~Revolving Credit~~ Lender that is in accordance with Section 2.1(c) and (ii) of any Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote ~~Request~~ Request. Any such subsequent Competitive Bid Quote shall be disregarded by the ~~Borrower~~ Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote~~. (d)~~ . The ~~Borrower~~ Agent’s notice to ALFA shall ~~as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 12:00 Noon on~~ specify (A) in the case of a Competitive Bid Loan at an Absolute Rate, the Quotation Date (or such other time and date as the Borrower and the Administrative Agent may agree) or (B) in the case of a Competitive Bid Loan at a Term Benchmark Competitive Rate, the third Business Day prior to the proposed date of borrowing) notify the Administrative Agent and Revolving Credit Lenders of (x) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received ~~as well as the ranges of bids submitted for each Interest Period requested,~~ and (yB) the respective principal amounts and Absolute ~~Rates or Term Benchmark Competitive~~ Rates~~, as the case may be~~, so offered by each ~~Revolving Credit~~ Lender (identifying the Lender that made each Competitive Bid Quote). (e) Not later than 11:30 a.m. Montgomery, Alabama time on the Quotation Date (or such other time and ~~(z)~~ date as ALFA and the Agent, with the consent of the Required Lenders, may approve), ALFA shall notify the Agent of its acceptance or nonacceptance of the ~~Competitive Bid Quotes~~offers submitted pursuant to Section 2.1(d) hereof (and the failure of ALFA to give such notice by such time shall constitute nonacceptance) and the Agent shall promptly notify each affected Lender. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. ~~The Borrower~~ ALFA may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $~~5,000,000~~ 10,000,000 or ~~in increments~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000); provided that: (i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request; (ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $~~5,000,000~~ 10,000,000 (or ~~an increment~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000) but shall not cause the limits specified in Section ~~2.5(a~~2.1(a) hereof to be ~~violated~~exceeded; (iii) ~~except as provided below,~~ acceptance of ~~Competitive Bid Quotes for any Interest Period~~ offers may be made only in ascending order of Absolute ~~Rates or Term Benchmark Competitive~~ Rates, ~~as the~~ in each case ~~may be,~~ beginning with the lowest rate so offered; and (iv) ~~the Borrower~~ ALFA may not accept any ~~Competitive Bid Quote~~ offer where the Agent has correctly advised ALFA that such ~~Competitive Bid Quote~~ offer fails to comply with Section ~~2.5(c)(ii~~2.1(c) hereof or otherwise fails to comply with the requirements of this Agreement (~~including, without limitation,~~ including Section ~~2.5(a~~2.1(a) hereof). Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, accept a Competitive Bid Quote that does not contain the lowest Absolute Rate or Term Benchmark Competitive Rates, as the case may be, where acceptance of the Competitive Bid Quote containing the lowest Absolute Rate or Term Benchmark Competitive Rate, as the case may be, would be less favorable to the Borrower or would cause the principal amount of Outstanding Revolving Credit Obligations to exceed the Total Revolving Credit Commitment. If ~~Competitive Bid Quotes~~ offers are made by two or more ~~Revolving Credit~~ Lenders with the same Absolute Rates ~~or Term Benchmark Competitive Rates, as the case may be,~~ for a greater aggregate principal amount than the amount in with respect of to which ~~Competitive Bid Quotes~~ offers are accepted for the related Interest Period after the acceptance of all ~~Competitive Bid Quotes~~offers, if any, of all lower Absolute ~~Rates or Term Benchmark Competitive~~ Rates~~, as the case may be~~, offered by any ~~Revolving Credit~~ Lender for such related Interest Period, the principal amount of Competitive Bid Loans in with respect of to which such ~~Competitive Bid Quotes~~ offers are accepted shall be allocated by ~~the Borrower~~ ALFA among such Lenders as nearly as possible (in amounts of at least $1,000,000 or ~~in increments~~ larger multiples of $~~100,000 in excess thereof~~100,000) in proportion to the aggregate principal amount of such ~~Competitive Bid Quotes~~offers. Determinations by ~~the Borrower~~ ALFA of the amounts of Competitive Bid Loans and the lowest bid after adjustment as provided in Section ~~2.5(d)(iii~~2.1(e)(iii) shall be conclusive in the absence of manifest error. (ef) Any ~~Revolving Credit~~ Lender whose offer to make any Competitive Bid Loan has been accepted shall, not later than ~~1:00 P.M.~~ noon Montgomery, Alabama time on the date specified for the making of such Competitive Bid Loan, make the amount of such Competitive Bid Loan available to the ~~Borrower as shall be directed by the Authorized Representative in Dollars and~~ Agent in immediately available funds. (f) From time to time, the Borrower shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and maturities thereof. (g) The Borrower may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A) in the case of a Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 A.M. on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Term Benchmark Competitive Rate, by 10:00 A.M. on the date a Competitive Bid Quote is submitted, notify the Borrower of the terms of any Competitive Bid Quote submitted by a Revolving Credit Lender that is in accordance with Section 2.5(c) hereof. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rate, as the case may be, offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of borrowing, in the case of Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree), the Borrower shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid Quotes which the Borrower requires the Administrative Agent to issue pursuant to this paragraph (g), the Borrower shall pay to the Administrative Agent funds for the account of the ~~Administrative~~ Borrowers. The amount so received by the Agent ~~a bid administration fee~~ shall, subject to the terms and conditions of ~~$1,500~~this Agreement, be made available to the Borrowers on such date by depositing the same in immediately available funds in an account of the Borrowers maintained at the principal office of the Agent.

Appears in 1 contract

Sources: Credit Agreement (Alfa Corp)

Competitive Bid Loans. (a) In addition to making Revolving ~~Credit Loans, at any time prior~~ Loans pursuant to the Revolving Credit ~~Termination Date and provided no Default or Event of Default exists hereunder~~Commitments pursuant to Section 2.01 above, the Borrower ~~may, as~~ may on the terms and conditions set forth ~~in this Section 2.5,~~ herein request the ~~Revolving Credit~~ Lenders to make offers to make Competitive Bid ~~Loans to the Borrower in Dollars~~Loans. The ~~Revolving Credit~~ Lenders may, but shall have no obligation to, make such ~~offers~~ offers, and the Borrower may, but shall have no ~~obligation~~ obligations to, accept any such offers in the manner set forth in this Section 2.5. There may be no more than ten (10) Interest Periods, and no more than one (1) one-week Interest Periods, for all Revolving Credit Loans and Competitive Bid Loans outstanding at the same time (for which purpose Interest Periods for each Term Benchmark Revolving Credit Loan and each Competitive Bid Loan shall be deemed to be different Interest Periods even if they are coterminous). The aggregate principal amount of all Outstanding Revolving Credit Obligations shall not exceed the Total Revolving Credit Commitment at any time. The aggregate principal amount of all outstanding Competitive Bid Loans shall not exceed one hundred percent (100%) of the Total Revolving Credit Commitment at any timeherein. (b) ~~When~~ In order to request Competitive Bids, the Borrower ~~wishes~~ shall telecopy to ~~request offers to make~~ the Lenders a duly completed Competitive Bid ~~Loans, it shall give~~ Request in the ~~Administrative Agent and the Revolving Credit Lenders notice (a “Competitive Bid Quote Request”)~~ form of Exhibit E attached hereto to be received no later than ~~12:00 Noon~~ 10:00 a.m. (Nashville, Tennessee time) on ~~(A)~~ the ~~fourth Business Day prior to~~ day of the ~~date of borrowing~~ proposed ~~therein, in the case of a~~ Competitive Bid ~~Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate~~ Loan or (B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree)Loans. The Borrower may request offers to make Competitive Bid Loans for up to ~~three (3)~~ five different Interest Rate Periods in a single notice; ~~provided~~ provided, however, that the request for each separate Interest Rate Period shall be deemed to be a separate Competitive Bid ~~Quote Request for a separate borrowing (a “~~Request. The Competitive Bid ~~Borrowing”~~Request shall in each case refer to this Agreement and specify (i) the date of such Loan or Loans (which shall be a Business Day) and ~~there shall not be outstanding at any~~ (ii) the aggregate principal amount thereof and whether the requested Loan is in Dollars or in a Foreign Currency (and if in a Foreign Currency, the applicable Foreign Currency) and (iii) subject to Section 2.05 herein, the Interest Rate Period requested with respect thereto. (c) Each Lender may, in its sole discretion, make one ~~time~~ or more ~~than four (4)~~ Competitive Bids to the Borrower responsive to each Competitive Bid ~~Borrowings~~Request. Each ~~such~~ Competitive Bid ~~Quote Request shall~~ by a Lender must be received by the Borrower via telecopy, substantially in the form of Exhibit G F attached ~~hereto and shall specify as to each~~ hereto, not later than 11:00 a.m. (Nashville, Tennessee time) on the Business Day of the proposed Competitive Bid ~~Borrowing:~~ Loan. Competitive Bids that do not conform substantially to the format of Exhibit E may be rejected by the Borrower, and the Borrower shall notify the Lender making such nonconforming bid of such rejection as soon as practicable. Each Competitive Bid shall refer to this Agreement and specify (i) the ~~proposed date of such borrowing~~principal amount, ~~which shall be~~ designating whether the bid is in Dollars or in a ~~Business Day;~~ Foreign Currency, (ii) the ~~aggregate amount~~ Competitive Bid Rate or Rates at which the Lender is prepared to make the Competitive Bid Rate Advance or Advances, and (iii) the Interest Rate Period and the last day thereof. If any Lender shall elect not to make a Competitive Bid, such Lender shall so notify the Borrower via telecopy by the time specified above for submitting a Competitive Bid; provided, however, that failure by any Lender to give such notice shall not cause such Lender to be obligated to make any Competitive Bid Rate Advance as part of such Competitive Bid Borrowing, which shall be at least $10,000,000 (or in increments of $1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.5(a) hereof to be violated; (iii) the duration of the Interest Period applicable thereto; (iv) whether the Loan. A Competitive Bid Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Term Benchmark Competitive Rate; (v) whether the Borrower shall have the right to prepay a requested Competitive Bid Loan; and (vi) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the “Quotation Date”). Except as otherwise provided in this Section 2.5(b), no more than two (2) Competitive Bid Quote Requests shall be given within five (5) Business Days (or such other number of days as the Borrower and the Administrative Agent may agree) of any other Competitive Bid Quote Request. (i) Each Revolving Credit Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote Request; provided that, if the Borrower’s request under Section 2.5(b) hereof specified more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the Borrower not later than 9:30 A.M. on (A) the third Business Day prior to the proposed date of borrowing, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree) provided that if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g), any Competitive Bid Quote may be submitted by ~~JPMorgan Chase Bank~~ a Lender pursuant to this paragraph (~~or its applicable Lending Office~~c) only if JPMorgan Chase Bank (or such applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than 9:15 A.M. on the Quotation Date. Any Competitive Bid Quote so made shall be irrevocable ~~except with the consent of the Administrative Agent given on the instructions of the Borrower.~~ (~~ii) Each~~ absent manifest error). No Competitive Bid Quote shall be substantially in the form of Exhibit H attached hereto and shall specify: (A) the proposed date of borrowing and the Interest Period therefor; (B) the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount shall be at least $5,000,000 (or in increments of $1,000,000 in excess thereof); provided that the aggregate principal amount of all Competitive Bid Loans for which submitted by a Lender submits Competitive Bid Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a particular Interest Period for which offers were requested; (C) in the case of a Competitive Bid Quote for Competitive Bid Loans at an Absolute Rate, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Competitive Bid Loan (the “Absolute Rate”); (D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Term Benchmark Competitive Rate, the positive or negative margin to be added to or deducted from the Adjusted Term SOFR Rate; and (E) the identity of the quoting ▇▇▇▇▇▇. Unless otherwise agreed by the Administrative Agent and the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid ~~Quote~~ Request is being made. Any subsequent Competitive Bid Quote submitted by a Revolving Credit Lender that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request shall be disregarded by the Borrower unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote. (d) The Borrower ~~shall as promptly as practicable after~~ may, in its sole and absolute discretion, subject only to the provisions of this paragraph (d), accept or reject any Competitive Bid ~~Quote is submitted~~ referred to in paragraph (~~but~~ c) above. The Borrower shall notify each Lender by telephone, confirmed by telecopy, whether and to what extent it has decided to accept or reject any of or all the bids referred to in ~~any event~~ paragraph (c) above not later than 12:00 ~~Noon~~ p.m. (Nashville, Tennessee time) on ~~(A) in~~ the ~~case~~ Business Day of a the proposed Competitive Bid ~~Loan at an Absolute Rate~~Loan; provided, ~~the Quotation Date (or such other time and date as the Borrower and the Administrative Agent may agree) or (B) in the case of a Competitive Bid Loan at a Term Benchmark Competitive Rate~~however, the third Business Day prior to the proposed date of borrowing) notify the Administrative Agent and Revolving Credit Lenders of (x) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (y) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rates, as the case may be, so offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote), and (z) its acceptance or nonacceptance of the Competitive Bid Quotes. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $5,000,000 or in increments of $1,000,000 in excess thereof); provided that: (i) the ~~aggregate principal amount~~ failure by the Borrower to give such notice shall be deemed to be a rejection of ~~each Competitive Bid Borrowing may not exceed~~ all the ~~applicable amount set forth~~ bids referred to in ~~the related Competitive Bid Quote Request;~~ paragraph (c) above, (ii) the aggregate ~~principal~~ amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or an increment of $1,000,000 in excess thereof) but shall not cause the limits specified in Section 2.5(a) hereof to be violated; (iii) except as provided below, acceptance of Competitive Bid Quotes for any Interest Period may be made only in ascending order of Absolute Rates or Term Benchmark Competitive Rates, as the case may be, beginning with the lowest rate so offered; and (iv) the Borrower may not accept any Competitive Bid Quote where such Competitive Bid Quote fails to comply with Section 2.5(c)(ii) hereof or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section 2.5(a) hereof). Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, accept a Competitive Bid Quote that does not contain the lowest Absolute Rate or Term Benchmark Competitive Rates, as the case may be, where acceptance of the Competitive ~~Bid Quote containing the lowest Absolute Rate or Term Benchmark Competitive Rate, as the case may be, would be less favorable to~~ Bids accepted by the Borrower ~~or would cause~~ shall not exceed the principal amount ~~of Outstanding Revolving Credit Obligations to exceed~~ specified in the ~~Total Revolving Credit Commitment. If~~ Competitive Bid Quotes are made by two or more Revolving Credit Lenders with the same Absolute Rates or Term Benchmark Competitive Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which Competitive Bid Quotes are accepted for the related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower Absolute Rates or Term Benchmark Competitive Rates, as the case may be, offered by any Revolving Credit Lender for such related Interest Period, the principal amount of Competitive Bid Loans in respect of which such Competitive Bid Quotes are accepted shall be allocated Request. A notice given by the Borrower ~~among such Lenders as nearly as possible~~ pursuant to this paragraph (in amounts of at least $1,000,000 or in increments of $100,000 in excess thereof) in proportion to the aggregate principal amount of such Competitive Bid Quotes. Determinations by the Borrower of the amounts of Competitive Bid Loans and the lowest bid after adjustment as provided in Section 2.5(d)(iiid) shall be ~~conclusive in the absence of manifest error~~irrevocable. (e) Any ~~Revolving Credit~~ Lender whose offer to make ~~any~~ a Competitive Bid ~~Loan~~ has been accepted shall, not later than ~~1:00 P.M.~~ 2:00 p.m. (Nashville, Tennessee time) on the proposed date ~~specified for~~ of the ~~making of such Loan~~Competitive Bid Loan borrowing, make the amount of such Competitive Bid Loan available to the Borrower ~~as shall be directed by the Authorized Representative in Dollars and~~ in immediately available ~~funds~~funds on the terms and conditions agreed to between the Borrower and the relevant Lender, provided, however, that the obligations of the Borrower with respect to all Competitive Bid Loans shall rank pari passu with the obligations of the Borrower to Lenders under any of the Loans. (f) ~~From time to time, the Borrower shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of~~ Each Competitive Bid ~~Loans~~Loan shall be repaid on the earlier of (i) a date agreed upon between Borrower and Lender, ~~including~~ and (ii) the ~~amounts, interest rates, dates of borrowings and maturities thereof~~Maturity Date. (g) The ~~Borrower may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A) in the case~~ proceeds of a Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 A.M. on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Term Benchmark Competitive Rate, by 10:00 A.M. on the date a Competitive Bid Quote is submitted, notify the Borrower of the terms of any Competitive Bid Quote submitted by a Revolving Credit Lender that is in accordance with Section 2.5(c) hereof. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount each of the Competitive Bid ~~Borrowing~~ Loans shall be used by the Borrower for ~~which~~ acquisitions, capital expenditures and as working capital, and for other general corporate purposes of the Borrower and other Consolidated Companies. (h) Any Lender's Competitive Bid ~~Quotes have been received~~ Rate Advance shall not reduce such Lender's obligation to lend its Pro Rata Share of the remaining unused Commitments. (i) The Borrower's obligations to pay the principal of, and ~~(B)~~ interest on, the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rate, as the case may be, offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of borrowing, in the case of Competitive Bid Loans at to each Lender shall be evidenced by the ~~Term Benchmark~~ records of each Lender and by the Competitive ~~Rate~~ Bid Note payable to such Lender (or ~~(B)~~ the ~~Quotation Date (or, in any~~ assignor of such ~~case, such other time and date as~~ Lender). On each occasion that the Borrower ~~and the Administrative Agent may agree)~~shall submit a request for a Revolving Credit Loan or a request for a Letter of Credit, the Borrower shall ~~notify~~ certify to Agent the ~~Administrative Agent~~ total outstanding principal amount of ~~their acceptance or nonacceptance of the~~ all Competitive Bid ~~Quotes so notified to it (~~Loans and the ~~failure of the Borrower to give~~ respective Lenders holding such ~~notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for~~ Competitive Bid ~~Quotes which~~ Loans (designating the ~~Borrower requires the Administrative Agent to issue pursuant to this paragraph (g~~amount held by each such Lender)~~, the Borrower shall pay to the Administrative Agent for the account of the Administrative Agent a bid administration fee of $1,500~~.

Appears in 1 contract

Sources: Credit Agreement (Service Experts Inc)

Competitive Bid Loans. (a) In addition to borrowings of Revolving Credit Loans, at any time prior to the Revolving Credit Termination Date ~~and provided no Default or Event of Default exists hereunder,~~ the Borrower may, as set forth in this Section ~~2.5~~2.03, request the ~~Revolving Credit~~ Lenders to make offers to make Competitive Bid Loans to the Borrower in Dollars. The ~~Revolving Credit~~ Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section ~~2.5~~2.03. ~~There may be no more than ten (10) Interest Periods, and no more than one (1) one-week Interest Periods, for all~~ The making of a Competitive Bid Loan by any Lender shall not reduce such Lender's available Revolving Credit ~~Loans and~~ Commitment except as a result of such Competitive Bid ~~Loans outstanding at~~ Loan reducing the ~~same time (for which purpose Interest Periods for each Term Benchmark~~ availability under the Total Revolving Credit ~~Loan and~~ Commitment. Immediately after giving effect to each Competitive Bid ~~Loan shall be deemed to be different Interest Periods even if they are coterminous). The aggregate principal amount of all Outstanding~~ Loan, Revolving Credit ~~Obligations~~ Outstandings shall not exceed the Total Revolving Credit ~~Commitment at any time~~Commitment. ~~The aggregate principal amount of all outstanding~~ Each Competitive Bid ~~Loans shall not exceed one hundred percent (100%)~~ Loan may be repaid only on the last day of the ~~Total Revolving Credit Commitment at any time~~Interest Period with respect thereto unless such payment is accompanied by the additional payment, if any, required by Section 4.05. (b) When the Borrower wishes to request offers from Lenders to make Competitive Bid Loans, it shall give the ~~Administrative~~ Agent ~~and~~ (which shall promptly notify the ~~Revolving Credit Lenders~~ Lenders) notice (a “"Competitive Bid Quote Request”") to be received no later than ~~12:00 Noon~~ 10:00 A.M. on ~~(A)~~ the ~~fourth~~ Business Day ~~prior to~~ immediately preceding the date of borrowing proposed ~~therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate~~ therein (or ~~(B) the Business Day prior to the date of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate (or, in any such case,~~ such other time and date as the Borrower and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree). The Borrower may request offers from Lenders to make Competitive Bid Loans for up to ~~three~~ four (34) different Interest Periods in a single notice; provided that the request for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request for a separate borrowing (a “"Competitive Bid Borrowing”") ~~and there shall not be outstanding at any~~ of one ~~time~~ or more ~~than four (4)~~ Competitive Bid ~~Borrowings~~Loans from the Lenders. Each such Competitive Bid Quote Request shall be substantially in the form of Exhibit ~~G attached~~ D hereto and shall specify as to each Competitive Bid Borrowing: (i) the proposed date of such ~~borrowing~~Competitive Bid Borrowing, which shall be a Business Day; (ii) the ~~aggregate~~ amount of such Competitive Bid Borrowing, which shall be at least $~~10,000,000~~ 5,000,000 (or ~~in increments~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000) but shall not cause the limits specified in Section ~~2.5(a~~2.03(a) ~~hereof~~ to be violated; (iii) the duration of the Interest Period applicable thereto; (iv) whether the Competitive Bid Quote Request for a particular Interest Period is seeking quotes for Competitive Bid Loans at the Absolute Rate or the Term Benchmark Competitive Rate; (v) whether the Borrower shall have the right to prepay a requested Competitive Bid Loan; and (viiv) the date on which the Competitive Bid Quotes are to be submitted if it is before the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be submitted is called the “"Quotation Date”"). Except as otherwise provided in this Section ~~2.5(b~~2.03(b), no ~~more than two (2)~~ Competitive Bid Quote ~~Requests~~ Request shall be given within five (5) Business Days (or such other number of days as the Borrower and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree) of any other Competitive Bid Quote Request. (i) Each ~~Revolving Credit~~ Lender may submit one or more Competitive Bid Quotes, each containing an offer to make a Competitive Bid ~~Loan~~ Loan, in response to any Competitive Bid Quote Request; provided that, if the Borrower’s 's request under Section ~~2.5(b~~2.03(b) ~~hereof specified~~ specifies more than one Interest Period, such Lender may make a single submission containing one or more Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted to the ~~Borrower~~ Agent not later than ~~9:30~~ 10:00 A.M. Charlotte, North Carolina time on ~~(A) the third Business Day prior to the proposed date of borrowing, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Term Benchmark Competitive Rate or (B)~~ the Quotation ~~Date, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the Absolute Rate~~ Date (~~or, in any such case,~~ or such other time and date as the Borrower and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree~~) provided~~ ; the Agent shall promptly notify all Lenders of such other agreed upon time and date); provided, that ~~if JPMorgan Chase Bank is receiving quotes as provided in Section 2.5(g),~~ any Competitive Bid Quote may be submitted by ~~JPMorgan Chase Bank~~ the Agent (or its ~~applicable~~ Applicable Lending Office) only if ~~JPMorgan Chase Bank~~ the Agent (or such ~~applicable~~ Applicable Lending Office) notifies the Borrower of the terms of the offer contained therein not later than ~~9:15~~ 9:45 A.M. (or 15 minutes prior to such other agreed upon time) Charlotte, North Carolina time on the Quotation Date. ~~Any~~ Subject to the express provisions of this Agreement, any Competitive Bid Quote so made shall be irrevocable except with the consent of the ~~Administrative~~ Agent given on at the ~~instructions~~ instruction of the Borrower. (ii) Each Competitive Bid Quote shall be substantially in the form of Exhibit ~~H attached~~ F hereto and shall specify: (A) the proposed date of borrowing and the Interest Period therefor; (B) the principal amount of the Competitive Bid Loan for which ~~each~~ such offer is being made, which principal amount shall be at least $~~5,000,000~~ 1,000,000 (or ~~in increments~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000); provided that (x) the aggregate principal amount of all Competitive Bid Loans for which a Lender submits Competitive Bid Quotes in response to a Competitive Bid Quote Request may not exceed the principal amount of the Competitive Bid Borrowing for ~~a particular~~ the Interest Period for which offers were requested, and (y) the limits specified in Section 2.03(a) shall not be exceeded; (C) ~~in the case of a Competitive Bid Quote for Competitive Bid Loans at an Absolute Rate,~~ the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for each such Competitive Bid Loan (the “"Absolute Rate”"); (D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the Term Benchmark Competitive Rate, the positive or negative margin to be added to or deducted from the Adjusted Term SOFR Rate; and (ED) the identity of the quoting ~~▇▇▇▇▇▇~~Lender. Unless otherwise agreed by the ~~Administrative~~ Agent and the Borrower, no Competitive Bid Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Competitive Bid Quote ~~Request~~ Request, and, in particular, no Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote is being made~~. Any subsequent~~ . (d) The Agent shall, as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not later than 10:30 A.M. Charlotte, North Carolina time on the Quotation Date), notify the Borrower of the terms (i) of any Competitive Bid Quote submitted by a ~~Revolving Credit~~ Lender that is in accordance with Section 2.03(c) and (ii) of any Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote ~~Request~~ Request. Any such subsequent Competitive Bid Quote shall be disregarded by the ~~Borrower~~ Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote. The Agent's notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Loans for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates so offered by each Lender (identifying the Lender that made each Competitive Bid Quote). (de) ~~The Borrower shall as promptly as practicable after the Competitive Bid Quote is submitted (but in any event not~~ Not later than ~~12:00 Noon~~ 11:00 A.M. Charlotte, North Carolina time on ~~(A) in the case of a Competitive Bid Loan at an Absolute Rate,~~ the Quotation Date (or such other time and date as the Borrower and the ~~Administrative Agent~~ Agent, with the consent of the Required Lenders, may agree~~) or (B) in the case of a Competitive Bid Loan at a Term Benchmark Competitive Rate~~), the ~~third Business Day prior to the proposed date of borrowing)~~ Borrower shall notify the ~~Administrative~~ Agent ~~and Revolving Credit Lenders~~ of (x) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges of bids submitted for each Interest Period requested, (y) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rates, as the case may be, so offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote), and (z) its acceptance or nonacceptance of the Competitive Bid ~~Quotes~~Quotes so notified to it pursuant to Section 2.03(d) (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Agent shall promptly notify each affected Lender. In the case of acceptance, such notice shall specify the aggregate principal amount of ~~offers~~ Competitive Bid Quotes for each Interest Period that are accepted. The Borrower may accept any Competitive Bid Quote in whole or in part (provided that any Competitive Bid Quote accepted in part shall be at least $~~5,000,000~~ 1,000,000 or ~~in increments~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000); provided that: (i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request; (ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least $5,000,000 (or ~~an increment~~ a larger multiple of $~~1,000,000 in excess thereof~~1,000,000) but shall not cause the limits specified in Section ~~2.5(a~~2.03(a) ~~hereof~~ to be violated; (iii) ~~except as provided below,~~ acceptance of Competitive Bid Quotes ~~for any Interest Period~~ may be made only in ascending order of Absolute ~~Rates or Term Benchmark Competitive~~ Rates~~, as the case may be~~, beginning with the lowest rate so offered; and (iv) the Borrower may not accept any Competitive Bid Quote where the Agent has correctly advised the Borrower that such ~~Competitive Bid Quote~~ offer fails to comply with Section ~~2.5(c)(ii~~2.03(c)(ii) ~~hereof~~ or otherwise fails to comply with the requirements of this Agreement (including, without limitation, Section ~~2.5(a) hereof~~2.03(a). Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, accept a Competitive Bid Quote that does not contain the lowest Absolute Rate or Term Benchmark Competitive Rates, as the case may be, where acceptance of the Competitive Bid Quote containing the lowest Absolute Rate or Term Benchmark Competitive Rate, as the case may be, would be less favorable to the Borrower or would cause the principal amount of Outstanding Revolving Credit Obligations to exceed the Total Revolving Credit Commitment). If Competitive Bid Quotes are made by two or more ~~Revolving Credit~~ Lenders with the same Absolute ~~Rates or Term Benchmark Competitive~~ Rates, ~~as the case may be,~~ for ~~a greater~~ an aggregate principal amount that is greater than the amount in respect of which Competitive Bid Quotes are accepted for the related Interest Period (after taking into account the acceptance of all Competitive Bid ~~Quotes~~Quotes with lower Absolute Rates, if any, ~~of all lower Absolute Rates or Term Benchmark Competitive Rates, as the case may be,~~ offered by any ~~Revolving Credit~~ Lender for such related Interest Period), then the principal amount of Competitive Bid Loans in respect of which such Competitive Bid Quotes are accepted shall be allocated by the Borrower among such Lenders as nearly as possible (in amounts of at least $~~1,000,000 or in increments of $100,000 in excess thereof~~1,000,000) in proportion to the aggregate principal amount of such Competitive Bid Quotes. Determinations by the Borrower of the amounts of Competitive Bid Loans and the ~~lowest bid after adjustment~~ Absolute Rates as provided in Section ~~2.5(d)(iii~~2.03(e)(iii) shall be conclusive in the absence of manifest error. (ef) Any ~~Revolving Credit~~ Lender whose ~~offer to make any~~ Competitive Bid ~~Loan~~ Quote has been accepted in accordance with Section 2.03(e) shall, not later than 1:00 P.M. Charlotte, North Carolina time on the date specified for the making of such Competitive Bid Loan, make the amount of such Competitive Bid Loan as accepted by the Borrower available to the ~~Borrower as shall be directed by~~ Agent at the ~~Authorized Representative~~ Principal Office in Dollars and in immediately available funds~~. (f) From time to time~~, the Borrower shall furnish such information to the Administrative Agent as the Administrative Agent may request relating to the making of Competitive Bid Loans, including the amounts, interest rates, dates of borrowings and maturities thereof. (g) The Borrower may request the Administrative Agent to receive the Competitive Bid Quotes, in which event the Administrative Agent shall (A) in the case of a Competitive Bid Loan at the Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no event later than 10:00 A.M. on the Quotation Date) or (B) in the case of a Competitive Bid Loan at the Term Benchmark Competitive Rate, by 10:00 A.M. on the date a Competitive Bid Quote is submitted, notify the Borrower of the terms of any Competitive Bid Quote submitted by a Revolving Credit Lender that is in accordance with Section 2.5(c) hereof. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B) the respective principal amounts and Absolute Rates or Term Benchmark Competitive Rate, as the case may be, offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of borrowing, in the case of Competitive Bid Loans at the Term Benchmark Competitive Rate or (B) the Quotation Date (or, in any such case, such other time and date as the Borrower and the Administrative Agent may agree), the Borrower shall notify the Administrative Agent of their acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the Borrower to give such notice by such time shall constitute nonacceptance) and the Administrative Agent shall promptly notify each affected Lender. Together with each notice of a request for Competitive Bid Quotes which the Borrower requires the Administrative Agent to issue pursuant to this paragraph (g), the Borrower shall pay to the Administrative Agent for the account of the ~~Administrative~~ Borrower. The amount so received by the Agent ~~a bid administration fee~~ shall, subject to the terms and conditions of ~~$1,500~~this Agreement, be made available to the Borrower on such date by depositing the same, in Dollars and in immediately available funds, in the Borrower's Account or otherwise as shall be directed by the Borrower.

Appears in 1 contract

Sources: Credit Agreement (Saks Inc)

Common use of Competitive Bid Loans Clause in Contracts