Interest and Applicable Margins. (a) Borrower shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the Index Rate plus the Applicable Revolver Index Margin per annum or, at the election of Borrower, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum. (A) As of the First A&R Closing Date, the Applicable Margins were as follows: Applicable Revolver Index Margin 0.00 % Applicable Revolver LIBOR Margin 1.25 % Applicable L/C Margin 1.25 % Applicable Unused Line Fee Margin 0.375 % At all times from and after the First A&R Closing Date until (but excluding) the Closing Date, the Applicable Margins shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.00 % 0.00 % 0.25 % 0.50 % Applicable Revolver LIBOR Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable L/C Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable Unused Line Fee Margin 0.375 % 0.375 % 0.25 % 0.25 % Adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on or about December 31, 2005 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. (B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum. (b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. (c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent of interest rates and Fees hereunder shall be presumptive evidence of the correctness of such rates and Fees. (d) So long as an Event of Default has occurred and is continuing under Section 8.1(a), (h) or (i), or so long as any other Event of Default has occurred and is continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to Borrower, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased to the rate per annum which is determined by adding two percent (2.0%) per annum to the Applicable Margin then in effect for such Loans (plus the LIBOR Rate or Index Rate, as the case may be) or to the rate of such Fees otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “Default Rate”), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of such Event of Default until that Event of Default is cured or waived. (e) Subject to the conditions precedent set forth in Section 2.2, Borrower shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 and integral multiples of $1,000,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago time) on the Third Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago time) on the Third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower must make such election by notice to Agent in writing, including by Electronic Transmission. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion/Continuation”) in the form of Exhibit 1.5(e). (f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate.
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Interest and Applicable Margins. (a) Borrower shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the Index Rate plus the Applicable Revolver Index Margin per annum or, at the election of Borrower, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
(A) As of the First A&R Closing Date, the Applicable Margins were as follows: Applicable Revolver Index Margin 0.00 % Applicable Revolver LIBOR Margin 1.25 % Applicable L/C Margin 1.25 % Applicable Unused Line Fee Margin 0.375 % At all times from and after the First A&R Closing Date until (but excluding) the Closing Date, the Applicable Margins shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.00 % 0.00 % 0.25 % 0.50 % Index Margin Applicable Revolver LIBOR Margin 1.25 % 1.50 % 1.75 % 2.00 % LIBOR Margin Applicable L/C Margin 1.25 % 1.50 % 1.75 % 2.00 % Margin Applicable Unused Line Fee Margin 0.375 % 0.375 % 0.25 % 0.25 % Fee Margin Adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on or about December 31, 2005 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured.
(B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Index Margin Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Margin Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum.
(b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent of interest rates and Fees hereunder shall be presumptive evidence of the correctness of such rates and Fees.
(d) So long as an Event of Default has occurred and is continuing under Section 8.1(a), (h) or (i), or so long as any other Event of Default has occurred and is continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to Borrower, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased to the rate per annum which is determined by adding two percent (2.0%) per annum to the Applicable Margin then in effect for such Loans (plus the LIBOR Rate or Index Rate, as the case may be) or to the rate of such Fees otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “Default Rate”), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of such Event of Default until that Event of Default is cured or waived.
(e) Subject to the conditions precedent set forth in Section 2.2, Borrower shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 and integral multiples of $1,000,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago time) on the Third Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago time) on the Third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower must make such election by notice to Agent in writing, including by Electronic Transmission. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion/Continuation”) in the form of Exhibit 1.5(e).
(f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate.
Appears in 1 contract
Interest and Applicable Margins. (a) Borrower shall pay interest to Agent, for the ratable benefit of all Lenders in accordance with the various Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the following rates: (i) with respect to the Revolving Credit Advances, the Index Rate plus the Applicable Revolver Index Margin per annum or, at the election of Borrower, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
, based on the aggregate Revolving Credit Advances outstanding from time to time and (Aii) As of with respect to the First A&R Closing DateSwing Line Loan, the Applicable Margins were as follows: Index Rate plus the Applicable Revolver Index Margin 0.00 per annum. The Applicable Margins are as follows: APPLICABLE MARGINS ------------------ LEVEL I LEVEL II LEVEL III ------- -------- --------- Applicable Revolver Index Margin 1.50% 1.75% 2.00% Applicable Revolver LIBOR Margin 1.25 3.00% 3.25% 3.50% Applicable L/C Margin 1.25 3.00% 3.25% 3.50% Applicable Unused Line Fee Margin 0.375 0.75% At all times 0.50% 0.375% During the period from and after the First A&R Closing Date until through August 31, 2002, the Applicable Margins shall be based on Level I (but excluding) regardless of the Closing DateTotal Commitment Usage during such period). Thereafter, the Applicable Margins shall be adjusted (up or down) prospectively on a monthly basis as determined by Borrower's Total Commitment Usage calculated on the average daily amount of usage of the Revolving Loan Commitment for the previous monthly period. Adjustments in Applicable Margins shall be determined by reference to the following gridsgrid: Applicable Revolver Index Margin 0.00 % 0.00 % 0.25 % 0.50 % Applicable Revolver LIBOR Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable L/C Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable Unused Line Fee Margin 0.375 % 0.375 % 0.25 % 0.25 % Adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on LEVEL OF IF TOTAL COMMITMENT USAGE IS: APPLICABLE MARGINS: ----------------------------- ------------------- greater than or about December 31, 2005 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured.
(B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to zero but less than or equal to 33% Level I greater than 50% of the average Maximum Amount during such period33%, the Applicable Unused Line Fee Margin for such period shall be but less than or equal to 0.37566% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is Level II greater than 66% but less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be or equal to 0.50100% per annum.Level III
(b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent of an interest rates rate and Fees hereunder shall be presumptive evidence of the correctness of such rates final, binding and Feesconclusive on Borrower, absent manifest error.
(d) So long as an Event of Default has occurred and is continuing under Section 8.1(a), (h) or (i), or so long as any other Event of Default has occurred and is continuing and continuing, at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to Borrower, to the extent not prohibited by applicable law, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased to the rate per annum which is determined by adding two percent percentage points (2.02%) per annum to above the Applicable Margin then in effect for such Loans (plus the LIBOR Rate rates of interest or Index Rate, as the case may be) or to the rate of such Fees otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “"Default Rate”"), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of such Event of Default as specified in such notice until that Event of Default is cured or waivedwaived and shall be payable upon demand.
(e) Subject to the conditions precedent set forth in Section 2.2, Borrower shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Revolving Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, thereto or (iv) continue all or any portion of any Revolving Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Revolving Loan to be continued. Any Revolving Loan or group of Revolving Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 1,000,000 and integral multiples of $1,000,000 250,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago New York time) on the Third third (3rd) Business Day prior to (1A) the date of any proposed Revolving Credit Advance which is to bear interest at the LIBOR Rate, (2B) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3C) the date on which Borrower wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago New York time) on the Third third (3rd) Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or if the additional conditions precedent set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower must make such election by notice to Agent in writing, including by Electronic Transmissiontelecopy or overnight courier. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “"Notice of Conversion/Continuation”") in the form of Exhibit 1.5(e). No Revolving Loan may be made as or converted into a LIBOR Loan until the earlier of (i) thirty (30) days after the date upon which the Interim Order shall have been entered by the Bankruptcy Court or (ii) the date upon which the Final Order shall have been entered by the Bankruptcy Court.
(f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “"Maximum Lawful Rate”"), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of interest and in the manner provided in Sections 1.5(a) through (e), unless and until the rate of interest again exceeds the Maximum Lawful Rate, and at that time this paragraph shall again apply. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum Lawful Rate is calculated pursuant to this paragraph, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which such calculation is made. If, notwithstanding the provisions of this Section 1.5(f), a court of competent jurisdiction shall finally determine that a Lender has received interest hereunder in excess of the Maximum Lawful Rate, Agent shall, to the extent permitted by applicable law, promptly apply such excess in the order specified in Section 1.11 and thereafter shall refund any excess to Borrower or as a court of competent jurisdiction may otherwise order.
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Sources: Credit Agreement (Budget Group Inc)
Interest and Applicable Margins. (a) Borrower Borrowers shall pay interest to Administrative Agent, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the following rates: (i) with respect to the Revolving Credit Advances, the Index Rate plus the Applicable Revolver Index Margin per annum or, at the election of BorrowerBorrower Representative in accordance with Section 1.5(e), the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
; (Aii) with respect to the Term Loan, the Index Rate plus the Applicable Term Loan Index Margin per annum; and (iii) with respect to the Swing Line Loan, the Index Rate plus the Applicable Revolver Index Margin per annum. As of the First A&R Closing Date, the Applicable Margins were are as follows: Applicable Revolver Index Margin 0.00 0.25% Applicable Revolver LIBOR Margin 1.25 1.75% Applicable L/C Term Loan Index Margin 1.25 5.00% Applicable Unused Line Fee Margin 0.375 0.375% At all times The Applicable Margins, other than the Applicable Term Loan Index Margin, will be adjusted (up or down) prospectively on a quarterly basis as determined based on daily average Borrowing Availability for the trailing fiscal quarter most recently ended, commencing with the calendar quarter ended January 31, 2004 (and with respect to such first fiscal period calculated from and after the First A&R Closing Date until through January 31, 2004) (but excluding) the Closing "Initial Adjustment Date, the "). Adjustments in Applicable Margins shall will be adjusted determined by reference to the following grids: IF AVERAGE BORROWING LEVEL OF AVAILABILITY FOR THE QUARTER IS: APPLICABLE MARGINS: -------------------------------- ------------------ > or = $90 MM Level I < $90 MM > or = $55 MM Level II < $55 MM > or = $45 MM Level III < $45 MM ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ LEVEL IV ------- -------- --------- -------- Applicable Revolver 0.0% 0.25% 0.50% 0.75% Index Margin 0.00 % 0.00 % 0.25 % 0.50 % Applicable Revolver 1.50% 1.75% 2.00% 2.25% LIBOR Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable L/C Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable Unused 0.25% 0.375% 0.375% 0.375% Line Fee Margin 0.375 % 0.375 % 0.25 % 0.25 % Adjustments All adjustments in the Applicable Margins commencing with after the Fiscal Quarter ending on or about December 31, 2005 shall Initial Adjustment Date will be implemented quarterly on a prospective basis, for each quarter commencing on the first day of the calendar month that begins quarter after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph quarterly unaudited or annual audited (bas applicable) Financial Statements of Annex E with respect to a Fiscal Quarter Parent evidencing the need for an adjustmentadjustment based on daily average Borrowing Availability for the prior fiscal quarter. Concurrently with the delivery of such Compliance Certificatethose Financial Statements, Borrower Representative shall deliver to Administrative Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate Financial Statements shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date first day of the first calendar month following the delivery of a Compliance Certificate those Financial Statements demonstrating that such an increase is not required. If an Event of Default has shall have occurred and is or be continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured.
(B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the first calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until following the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum.
(b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis and interest shall be made by Administrative Agent on the basis of a three hundred and sixty (360-) day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Rate is a floating rate shall be determined for each day based upon the Index Rate as in effect each day. Each determination by Administrative Agent of an interest rates rate and Fees hereunder shall be presumptive evidence of the correctness of such rates and Feesconclusive, absent error.
(d) So long as an any Event of Default has shall have occurred and is continuing under Section 8.1(a)be continuing, (h) or (i), or so long as any other Event of Default has occurred and is continuing and at the election of Administrative Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Administrative Agent to BorrowerBorrower Representative, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased to the rate per annum which is determined by adding two percent percentage points (2.02%) per annum to above the Applicable Margin then in effect for such Loans (plus the LIBOR Rate rates of interest or Index Rate, as the case may be) or to the rate of such Fees otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “"Default Rate”"), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of such Event of Default until that Event of Default is cured or waivedwaived and shall be payable upon demand; provided that if an Event of Default shall have occurred and be continuing under Sections 8.1(g) or (h) the Default Rate shall be applied automatically.
(e) Subject So long as no Default or Event of Default shall have occurred and be continuing, and subject to the additional conditions precedent set forth in Section 2.22.3, Borrower Representative shall have the option to (i) request that any Revolving Credit Advance Advances be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 10,000,000 and integral multiples of $1,000,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago New York time) on the Third third (3rd) Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower Representative wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower Representative in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago New York time) on the Third third (3rd) Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has shall have occurred and is be continuing or if the additional conditions precedent set forth in Section 2.2 2.3 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower Representative must make such election by notice to Administrative Agent in writing, including by Electronic Transmissiontelecopy or overnight courier. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “"Notice of Conversion/Continuation”") in the form of Exhibit 1.5(e).
(f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “"Maximum Lawful Rate”"), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower Borrowers shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Administrative Agent, on behalf of Lenders, is equal to the total interest that which would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of interest and in the manner provided in Sections 1.5(a) through (e) above, unless and until the rate of interest again exceeds the Maximum Lawful Rate, and at that time this paragraph shall again apply. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that which such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum Lawful Rate is calculated pursuant to this paragraph, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which such calculation is made. If, notwithstanding the provisions of this Section 1.5(f), a court of competent jurisdiction shall finally determine that a Lender has received interest hereunder in excess of the Maximum Lawful Rate, Administrative Agent shall, to the extent permitted by applicable law, promptly apply such excess in the order specified in Section 1.11 and thereafter shall refund any excess to Borrowers or as a court of competent jurisdiction may otherwise order.
Appears in 1 contract
Interest and Applicable Margins. (a) Borrower Borrowers shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the following rates: (i) with respect to the Revolving Credit Advances, the Index Rate plus PLUS the Applicable Revolver Index Margin per annum PER ANNUM or, at the election of BorrowerBorrower Representative, the applicable LIBOR Rate plus PLUS the Applicable Revolver LIBOR Margin per annum.
PER ANNUM, based on the aggregate Revolving Credit Advances outstanding from time to time; and (Aii) As of with respect to the First A&R Closing DateSwing Line Loan, the Applicable Margins were as follows: Index Rate PLUS the Applicable Revolver Index Margin 0.00 % PER ANNUM. The Applicable Revolver Index Margin, Applicable Revolver LIBOR Margin 1.25 % Applicable L/C Margin 1.25 % Margin, and Applicable Unused Line Fee Margin 0.375 shall be 0%, 2.5%, and 0.25% At all times from and after the First A&R Closing Date until (but excluding) PER ANNUM, respectively, as of the Closing Date, the . The Applicable Margins shall be adjusted (up or down) prospectively on a quarterly basis as determined by Borrowers' Net Borrowing Availability Ratio , commencing with the first day of the first calendar month that occurs more than five days after delivery of Borrowers' quarterly Financial Statements to Lenders for the Fiscal Quarter ending March 31, 2001. Adjustments in Applicable Margins will be determined by reference to the following grids: IF NET BORROWING AVAILABILITY LEVEL OF RATIO IS: APPLICABLE MARGINS: --------- ------------------- GREATER THAN OR EQUAL TO 10% Level I GREATER THAN OR EQUAL TO 5%, but LESS THAN 10% Level II GREATER THAN OR EQUAL TO 0%, but LESS THAN 5% Level III APPLICABLE MARGINS ------------------ LEVEL I LEVEL II LEVEL III ------- -------- --------- Applicable Revolver -0.5% 0% 0.5% Index Margin 0.00 % 0.00 % 0.25 % 0.50 % Applicable Revolver LIBOR 2.0% 2.5% 3.0% Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable L/C Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable Unused Line Fee 0.25% 0.25% 0.375% Margin 0.375 % 0.375 % 0.25 % 0.25 % Adjustments All adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on or about December after March 31, 2005 2001, shall be implemented quarterly on a prospective basis, commencing on the first day of the for each calendar month that begins commencing at least five days after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph quarterly unaudited or annual audited (bas applicable) of Annex E with respect to a Fiscal Quarter Financial Statements evidencing the need for an adjustment. Concurrently with the delivery of such Compliance CertificateFinancial Statements, Borrower Representative shall deliver to Agent and Lenders a certificate, in the form of EXHIBIT 1.5(a), signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate Financial Statements shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, grid until the date of the delivery of a Compliance Certificate those Financial Statements demonstrating that such an increase is not required. If an a Default or Event of Default has shall have occurred and is be continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the first day of the first calendar month following the date on which such Default or Event of Default is waived or cured.
(B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum.
(b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum PER ANNUM basis and interest shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such Fees or interest and Fees are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent of an interest rates and rate or Fees hereunder shall be presumptive evidence of the correctness of such rates final, binding and Feesconclusive on Borrower (absent manifest error).
(d) So long as an Event of Default has shall have occurred and is be continuing under Section SECTION 8.1(a), (h) or (i), ) or so long as any other Default or Event of Default has shall have occurred and is continuing be continuing, and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to BorrowerBorrower Representative, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased to the rate per annum which is determined by adding two percent percentage points (2.02%) per annum to PER ANNUM above the Applicable Margin then in effect for such Loans (plus the LIBOR Rate rates of interest or Index Rate, as the case may be) or to the rate of such Fees otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “Default Rate”"DEFAULT RATE"), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of such Default or Event of Default until that Default or Event of Default is cured or waivedwaived and shall be payable upon demand.
(e) Subject So long as no Default or Event of Default shall have occurred and be continuing and subject to the conditions precedent set forth in Section SECTION 2.2, Borrower Representative shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section SECTION 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 2,500,000 and integral multiples of $1,000,000 500,000 in excess of such amount. Any such election must be made by 11:00 10:00 a.m. (Chicago California time) on the Third third Business Day prior to (1A) the date of any proposed Advance which that is to bear interest at the LIBOR Rate, (2B) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3C) the date on which Borrower Representative wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower Representative in such election. If no election is received with respect to a LIBOR Loan by 11:00 10:00 a.m. (Chicago California time) on the Third third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has shall have occurred and is be continuing or if the additional conditions precedent set forth in Section SECTION 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower Representative must make such election by notice to Agent in writing, including by Electronic Transmissiontelecopy or overnight courier. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion"NOTICE OF CONVERSION/Continuation”CONTINUATION") in the form of Exhibit EXHIBIT 1.5(e).
(f) Notwithstanding anything to the contrary set forth in this Section SECTION 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”"MAXIMUM LAWFUL RATE"), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, howeverPROVIDED, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower Borrowers shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of interest and in the manner provided in SECTIONS 1.5(a) through (e), unless and until the rate of interest again exceeds the Maximum Lawful Rate, and at that time this paragraph shall again apply. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum Lawful Rate is calculated pursuant to this paragraph, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate DIVIDED BY the number of days in the year in which such calculation is made. If, notwithstanding the provisions of this SECTION 1.5(f), a court of competent jurisdiction shall finally determine that a Lender has received interest hereunder in excess of the Maximum Lawful Rate, then Agent shall, to the extent permitted by applicable law, promptly apply such excess in the order specified in SECTION 1.11 and thereafter shall refund any excess to Borrowers or as a court of competent jurisdiction may otherwise order.
Appears in 1 contract
Sources: Credit Agreement (Track N Trail Inc)
Interest and Applicable Margins. (a) Borrower shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the Index Rate plus the Applicable Revolver Index Margin per annum or, at the election of Borrower, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
(A) . As of the First A&R Closing Date, the Applicable Margins were are as follows: Applicable Revolver Index Margin 0.00 0.00% Applicable Revolver LIBOR Margin 1.25 1.25% Applicable L/C Margin 1.25 1.25% Applicable Unused Line Fee Margin 0.375 0.375% At all times from and after the First A&R Closing Date until (but excluding) the Closing Date, the The Applicable Margins shall be adjusted by reference to the following grids: LEVEL OF IF REFERENCE AVAILABILITY IS: APPLICABLE MARGINS: ---------------------------- ------------------ >$35,000,000 Level I > $25,000,000, but < or = $35,000,000 Level II > $15,000,000, but < or = $25,000,000 Level III < or = $15,000,000 Level IV APPLICABLE MARGINS ------------------- L▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ------ ------- -------- -------- Applicable Revolver 0.00% 0.00% 0.25% 0.50% Index Margin 0.00 % 0.00 % 0.25 % 0.50 % Applicable Revolver LIBOR Margin 1.25 1.25% 1.50 1.50% 1.75 1.75% 2.00 2.00% Applicable L/C Margin 1.25 1.25% 1.50 1.50% 1.75 1.75% 2.00 2.00% Applicable Unused Line Fee Margin 0.375 0.375% 0.375 0.375% 0.25 0.25% 0.25 0.25% Adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on or about December 31, 2005 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured.
(B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum.
(b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent of interest rates and Fees hereunder shall be presumptive evidence of the correctness of such rates and Fees.
(d) So long as an Event of Default has occurred and is continuing under Section 8.1(a), (h) or (i), or so long as any other Event of Default has occurred and is continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to Borrower, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased to the rate per annum which is determined by adding two percent percentage points (2.02%) per annum to above the Applicable Margin then in effect for such Loans (plus highest interest rate on the LIBOR Rate grid of interest or Index Rate, as the case may be) or to the rate of such Fees otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “"Default Rate”"), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of such Event of Default until that Event of Default is cured or waivedwaived and shall be payable upon demand.
(e) Subject to the conditions precedent set forth in Section 2.2, Borrower shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 and integral multiples of $1,000,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago time) on the Third Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago time) on the Third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower must make such election by notice to Agent in writing, including by Electronic Transmissiontelecopy or overnight courier. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “"Notice of Conversion/Continuation”") in the form of Exhibit 1.5(e).
(f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “"Maximum Lawful Rate”"), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate.
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Interest and Applicable Margins. (a) Borrower shall pay interest to Agent, or Revolving Credit Agent, as appropriate, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the Index following rates: (i) with respect to the Revolving Credit Advances, the Base Rate plus the Applicable Revolver Index Base Margin per annum or, at the election of Borrower, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
, based on the aggregate Revolving Credit Advances outstanding from time to time; and (Aii) with respect to the Term Loan, the Base Rate plus the Applicable Term Loan Base Margin per annum or, at the election of Borrower, the applicable LIBOR Rate plus the Applicable Term Loan LIBOR Margin per annum. As of the First A&R Closing Date, the Applicable Margins were as follows: Applicable Revolver Index Margin 0.00 % Applicable Revolver LIBOR Margin 1.25 % Applicable L/C Margin 1.25 % Applicable Unused Line Fee Margin 0.375 % At all times from and after the First A&R Closing Date until (but excluding) the Closing Date, the Applicable Revolver Base Margin, Applicable Term Loan Base Margin, Applicable Revolver LIBOR Margin, Applicable Term Loan LIBOR Margin, and Applicable L/C Margin will be 2.00%, 2.00%, 3.50%, 3.50%, and 3.50% per annum, respectively. The Applicable Margins shall will be adjusted (up or down) prospectively on a quarterly basis as determined by Borrower's consolidated financial performance, commencing with the first day of the first calendar month that occurs more than three (3) Business Days after delivery of Borrower's quarterly Financial Statements to Lenders for the Fiscal Quarter ending June 30, 2001. Adjustments in Applicable Margins will be determined by reference to the following grids: :
2.75:1 Level I > or = 2.50:1, but <2.75:1 Level II > or = 2.25:1, but <2.50:1 Level III > or = 2.00:1, but <2.25:1 Level IV > or = 1.75:1, but <2.00:1 Level V <1.75:1 Leve▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ LEVEL IV LEVEL V LEVEL VI ------- -------- --------- -------- ------- -------- Applicable 2.25% 2.00% 1.75% 1.50% 1.25% 1.00% Revolver Index Base Margin 0.00 Applicable 3.75% 0.00 3.50% 0.25 3.25% 0.50 3.00% Applicable 2.75% 2.50% Revolver LIBOR Margin 1.25 Applicable Term 2.25% 1.50 2.00% 1.75 1.75% 2.00 1.50% 1.25% 1.00% Loan Base Margin Applicable Term 3.75% 3.50% 3.25% 3.00% 2.75% 2.50% Loan LIBOR Margin Applicable L/C 3.75% 3.50% 3.25% 3.00% 2.75% 2.50% Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable Unused Line Fee Margin 0.375 % 0.375 % 0.25 % 0.25 % Adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on or about December 31, 2005 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificatethose Financial Statements, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officera Responsible Financial Officer of Borrower, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate Financial Statements shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing gridgrid applicable to such Loan, until the date first day of the first calendar month following the delivery of a Compliance Certificate those Financial Statements demonstrating that such an increase is not required. If a Default or an Event of Default has shall have occurred and is or be continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the first day of the first calendar month following the date on which such Default or Event of Default is waived or cured.
(B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum.
(b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a three hundred and sixty (360-) day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Base Rate is a floating rate shall be determined for each day based upon the Base Rate as in effect each day. Each determination by Agent of an interest rates rate and Fees hereunder shall be presumptive evidence of the correctness of such rates and Feesconclusive, absent manifest error.
(d) So long as an Event of Default has shall have occurred and is be continuing under Section 8.1(a), (h) or (i), or so long as any other Default or Event of Default has shall have occurred and is be continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to Borrower, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased to the rate per annum which is determined by adding two percent (2.02%) per annum to above the Applicable Margin then in effect for such Loans (plus the LIBOR Rate rates of interest or Index Rate, as the case may be) or to the rate of such Fees otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “Default Rate”), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of such Event of Default until that Event of Default is cured or waived.
(e) Subject to the conditions precedent set forth in Section 2.2, Borrower shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 and integral multiples of $1,000,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago time) on the Third Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago time) on the Third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower must make such election by notice to Agent in writing, including by Electronic Transmission. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion/Continuation”) in the form of Exhibit 1.5(e).
(f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate.otherwise
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Interest and Applicable Margins. (a) Borrower shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, Lender in arrears on each applicable Interest Payment Date, at the Index Rate plus the Applicable Revolver Index Margin per annum or, at the election of Borrower, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
(A) . As of the First A&R Closing Date, the Applicable Margins were are as follows: Applicable Revolver Index Margin 0.00 0.50 % Applicable Revolver LIBOR Margin 1.25 2.75 % Applicable L/C Margin 1.25 % Applicable Unused Line Fee Margin 0.375 % At all times from and after the First A&R Closing Date until (but excluding) the Closing Date, the The Applicable Margins shall may be adjusted by reference to the following grids: < 1.30:1.00 Level I ³ 1.30:1.00, but £1.80:1.00 Level II > 1.80:1.00 Level III Applicable Revolver Index Margin 0.00 0.75 % 0.00 0.50 % 0.25 % 0.50 % Applicable Revolver LIBOR Margin 1.25 3.00 % 1.50 2.75 % 1.75 % 2.00 % Applicable L/C Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable Unused Line Fee Margin 0.375 % 0.375 % 0.25 % 0.25 2.50 % Adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on or about December 31June 30, 2005 2006 shall be implemented quarterly on a prospective basis, commencing on the first day of the for each calendar month that begins commencing at least five (5) days after the date of delivery to Lenders Lender of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph quarterly unaudited or annual audited (bas applicable) of Annex E with respect to a Fiscal Quarter Financial Statements evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificatethose Financial Statements, Borrower shall deliver to Agent and Lenders Lender a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to deliver timely deliver such Compliance Certificate Financial Statements shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date first day of the first calendar month following the delivery of a Compliance Certificate those Financial Statements demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the first day of the first calendar month following the date on which such Event of Default is waived or cured.
(B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum.
(b) If any payment on any the Revolving Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent Lender on the basis of a 360-360 day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent Lender of an interest rates and Fees rate hereunder shall be presumptive evidence of the correctness of such rates and Fees.
(d) So long as an Event of Default has occurred and is continuing under Section Sections 8.1(a), (h) or (i), ) has occurred and is continuing or so long as any other Event of Default has occurred and is continuing continuing, and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by Lender after written notice from Agent Lender to Borrower, the interest rates applicable to the Loans and the Letter of Credit Fees Revolving Loan shall be increased to the rate per annum which is determined by adding two percent percentage points (2.02%) per annum to above the Applicable Margin then in effect for such Loans (plus the LIBOR Rate rates of interest or Index Rate, as the case may be) or to the rate of such Fees otherwise applicable hereunder unless Agent or Requisite Lenders elect Lender elects to impose a smaller increase (the “Default Rate”), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of such Event of Default until that Event of Default is cured or waivedwaived and shall be payable in arrears upon demand.
(e) Subject to the conditions precedent set forth in Section 2.2, Borrower shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part portion of the outstanding Loans (other than the Swing Line Loan) Revolving Loan from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any the Revolving Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period Period, and the succeeding LIBOR Period of that continued Revolving Loan shall commence on the first day after the last day of the LIBOR Period of the Revolving Loan to be continued. Any portion or portions of the outstanding Revolving Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 1,000,000 and integral multiples of $1,000,000 500,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago New York time) on the Third 3rd Business Day prior to (1) the date of any proposed Revolving Credit Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago New York time) on the Third third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or if the additional conditions precedent set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower must make such election by notice to Agent Lender in writing, including by Electronic Transmissiontelecopy or overnight courier. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion/Continuation”) in the form of Exhibit 1.5(e).
(f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, Lender is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate.
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Interest and Applicable Margins. (a) Borrower Borrowers shall pay interest to Agent, for the ratable benefit of Lenders Lenders, in accordance with the various Loans being made by each Lender (or in the case of the Swing Line Loan, for the benefit of the Swing Line Lender), in arrears on each applicable Interest Payment Date, at the following per annum rates: (i) with respect to the Revolving Credit Advances which are designated as Index Rate Loans, the Index Rate plus the Applicable Revolver Index Margin per annum or, with respect to Revolving Credit Advances which are designated as LIBOR Loans, at the election of BorrowerBorrower Representative, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
Margin; and (Aii) with respect to the Swing Line Loan, the Index Rate plus the Applicable Revolver Index Margin. As of the First A&R Closing Second Amendment Effective Date, the Applicable Margins were are as follows: Applicable Revolver Index Margin 0.00 0.25 % Applicable Revolver LIBOR Margin 1.25 2.75 % Applicable L/C Margin 1.25 2.75 % The Applicable Unused Line Fee Margin 0.375 Margins shall be adjusted (up or down) prospectively on a quarterly basis on the first Business Day of each Fiscal Quarter as determined by average daily Borrowing Availability for the immediately preceding Fiscal Quarter, commencing January 1, 2011. Adjustments in Applicable Margins will be determined by reference to the following grids: > $20,000,000 0.00 % At all times from 2.50 % > $10,000,000 and after < $20,000,000 0.25 % 2.75 % < $10,000,000 0.50 % 3.00 % In the First A&R Closing Date until (but excluding) event that EBITDA for the Closing Fiscal Year ending on or about December 31, 2010 exceeds $11,800,000, then beginning on the first anniversary of the Second Amendment Effective Date, the Applicable Margins shall be adjusted by reference to the following gridsreset as described below: Applicable Revolver Index Margin > $20,000,000 0.00 % 2.25 % > $10,000,000 and < $20,000,000 0.00 % 2.50 % < $10,000,000 0.25 % 0.50 2.75 % Applicable Revolver LIBOR Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable L/C Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable Unused Line Fee Margin 0.375 % 0.375 % 0.25 % 0.25 % Adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on or about December 31, 2005 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to If any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If Default or an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured.
(B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the first calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until following the date on which such Event all Defaults or Events of Default is are waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum.
(b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such Fees and interest and Fees are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent of an interest rates rate and Fees hereunder shall be presumptive evidence of the correctness of such rates final, binding and Feesconclusive on Borrowers, absent manifest error.
(d) So long as an Event of Default has occurred and is continuing under Section 8.1(a6.1(a), (hf) or (i)g) and without notice of any kind, or so long as any other Event of Default has occurred and is continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to BorrowerBorrower Representative, the interest rates applicable to the Loans and the Letter of Credit Fees Fee shall be increased to the rate per annum which is determined by adding two percent percentage points (2.02%) per annum to above the Applicable Margin then in effect for such Loans (plus the LIBOR Rate rates of interest or Index Rate, as the case may be) or to the rate of such Fees Fee otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “Default Rate”), ) and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of any such Event of Default until that such Event of Default is cured or waived.
(e) Subject to waived and shall be payable upon demand, but in any event, shall be payable on the conditions precedent next regularly scheduled payment date set forth in Section 2.2, herein for such Obligation. Borrower Representative shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of the LIBOR breakage costs Breakage Fee in accordance with Section 1.13(b1.3(e) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 250,000 and integral multiples of $1,000,000 100,000 in excess of such amount. Any such election must be made by 11:00 a.m. 1:00 p.m. (Chicago New York time) on the Third third Business Day prior to (1) the date of any proposed Revolving Credit Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower Representative wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower Representative in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. 1:00 p.m. (Chicago New York time) on the Third third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 shall not have been satisfied)thereto, that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower Representative must make such election by notice to Agent in writing, including by Electronic Transmissionfax or overnight courier. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion/Continuation”) in the form of Exhibit 1.5(e1.2(e). No Loan shall be made, converted into or continued as a LIBOR Loan, if an Event of Default has occurred and is continuing and Agent or Requisite Lenders have determined not to make or continue any Loan as a LIBOR Loan as a result thereof.
(fe) Notwithstanding anything to the contrary set forth in this Section 1.51.2, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower Borrowers shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of interest and in the manner provided in Sections 1.2(a) through (e), unless and until the rate of interest again exceeds the Maximum Lawful Rate, and at that time this paragraph shall again apply. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum Lawful Rate is calculated pursuant to this paragraph, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which such calculation is made. If, notwithstanding the provisions of this Section 1.2(f), a court of competent jurisdiction shall determine by a final, non-appealable order that a Lender has received interest hereunder in excess of the Maximum Lawful Rate, Agent shall, to the extent permitted by applicable law, promptly apply such excess as specified in Section 1.5(e) and thereafter shall refund any excess to Borrowers or as such court of competent jurisdiction may otherwise order.
Appears in 1 contract
Sources: Credit Agreement (Golfsmith International Holdings Inc)
Interest and Applicable Margins. (a) Borrower The Borrowers shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the Index following rates: (i) the Base Rate plus the Applicable Revolver Index Margin per annum orannum, or (ii) at the election of Borrowerthe Borrowers, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
(Ab) As of the First A&R Closing Date, the The Applicable Margins were shall be established by reference to the following Levels of Applicable Margins set forth below: > 22.0x Level I < 22.0x but ³ 20.0x Level II < 20.0x but ³ 18.0x Level III < 18.0x but ³ 16.0x Level IV < 16.0 Level V The Applicable Margins shall be as follows: Applicable Revolver Index Base Rate Margin 0.00 3.000 % 2.500 % 2.000 % 1.500 % 1.250 % Applicable Revolver LIBOR Margin 1.25 4.250 % Applicable L/C Margin 1.25 3.750 % Applicable Unused Line Fee Margin 0.375 3.250 % At all times from and after 2.750 % 2.500 % From the First A&R Closing Date until (but excluding) the Closing Datefirst adjustment as described below, the Applicable Margins shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.00 % 0.00 % 0.25 % 0.50 % Applicable Revolver LIBOR Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable L/C Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable Unused Line Fee Margin 0.375 % 0.375 % 0.25 % 0.25 % Adjustments in the set at Level I. The Applicable Margins commencing with the Fiscal Quarter ending on or about December 31, 2005 shall be implemented quarterly on a prospective basisadjusted, commencing initially, on the first day of the calendar month that begins after following the date of delivery to Lenders month in which completion of the Compliance Certificate delivered post closing requirements set forth in Section 6.13 hereof occurs, and on a quarterly basis thereafter, such further adjustments to Agent and Lenders pursuant be effective retroactively commencing on the first day of each quarter, to paragraph the extent that the quarterly unaudited (bfor the immediately preceding quarter) of Annex E with respect to a Fiscal Quarter or annual audited (as applicable) Financial Statements evidencing the need for an adjustment; provided however that, for purposes of determining an adjustment in the Applicable Margins following the last Fiscal Quarter of any Fiscal Year, Borrower shall be permitted to deliver annual unaudited Financial Statements pending delivery of the required annual audited Financial Statements and the Applicable Margins shall be adjusted based upon such unaudited Financial Statements, if necessary, through the earlier of (i) the date on which such audited annual Financial Statements are required to be delivered hereunder and (ii) the date of actual delivery of such Financial Statements; provided, further, that any adjustments applied based upon the unaudited Financial Statements are subject to retroactive adjustment for all periods to which such adjustments were applied based upon such audited annual Financial Statements. Concurrently with the delivery of such Compliance Certificateall Financial Statements, Borrower Holdings shall deliver to Agent and Lenders a certificate, signed by its chief financial officerPresident or Chief Financial Officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the first day following the date on which such Event of Default is waived or cured.
(B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum.
(bc) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. The foregoing shall not be given effect, however, in respect of the calculation of Financial Covenants relating to scheduled principal payments.
(cd) All computations of Fees calculated on a per annum basis and interest based on the LIBOR Rate shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. All computations of interest based on the Base Rate shall be made by Agent on the basis of a 365/366-day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Base Rate is a floating rate determined for each day. Each determination by Agent of interest rates and Fees hereunder shall shall, absent manifest error, be presumptive evidence of the correctness of such rates and Fees.
(de) So long as an Event of Default has occurred and is continuing under Section 8.1(a10.1(a), (hg) or (ih), or the interest rates applicable to the Loans shall be increased by four percentage points (4%) per annum, and so long as any other Event of Default (except under Section 10.1(a) to the extent the following sentence shall apply) has occurred and is continuing and at the election of Agent (or upon the written request of Requisite Lenders) Lenders confirmed by written notice from Agent to Borrowerthe Borrowers, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased to the rate per annum which is determined by adding two percent percentage points (2.02%) per annum to annum, above the Applicable Margin then in effect for such Loans (plus the LIBOR Rate or Index Rate, as the case may be) or to the rate rates of such Fees interest otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “Default Rate”), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of such the applicable Event of Default until that Event of Default is cured or waivedwaived and shall be payable upon demand.
(ef) Subject to the conditions precedent set forth in Section 2.2, Borrower the Borrowers shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Base Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index a Base Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b2.10(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 100,000 and integral multiples of $1,000,000 100,000 in excess of such amount. Any such election must be made by 11:00 a.m. noon (Chicago New York time) on the Third third Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower wishes the Borrowers wish to convert any Index Base Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower the Borrowers in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. noon (Chicago New York time) on the Third third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 3.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index a Base Rate Loan at the end of its LIBOR Period. Borrower The Borrowers must make such election by notice to Agent in writing, including by Electronic Transmissiontelecopy or overnight courier. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion/Continuation”) in the form of Exhibit 1.5(e2.4(f).
(fg) Notwithstanding anything to the contrary set forth in this Section 1.52.4, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate.
Appears in 1 contract
Interest and Applicable Margins. (a) Borrower The Borrowers shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the Index following rates: (i) the Base Rate plus the Applicable Revolver Index Margin per annum orannum, or (ii) at the election of Borrowerthe Borrowers, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
(Ab) As of the First A&R Closing Date, the The Applicable Margins were shall be established by reference to the following Levels of Applicable Margins set forth below: If Qualified Retail RMR Leverage Ratio is: Level of Applicable Margins: £ 18.0x Level I > 18.0x but £ 20.0x Level II > 20.0x but £ 22.0x Level III > 22.0x but £ 24.0x Level IV > 24.0x but £ 25.0x Level V > 25.0x but £ 26.0x Level VI The Applicable Margins shall be as follows: Applicable Revolver Index Base Rate Margin 0.00 1.50 % 2.00 % 2.50 % 3.00 % 3.75 % 4.25 % Applicable Revolver LIBOR Margin 1.25 3.25 % Applicable L/C Margin 1.25 3.25 % Applicable Unused Line Fee Margin 0.375 3.75 % At all times from and after 4.25 % 5.25 % 5.75 % From the First A&R Closing Date until (but excluding) the Closing Datefirst adjustment as described below, the Applicable Margins shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.00 % 0.00 % 0.25 % 0.50 % Applicable Revolver LIBOR Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable L/C Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable Unused Line Fee Margin 0.375 % 0.375 % 0.25 % 0.25 % Adjustments in the set at Level VI. The Applicable Margins commencing with the Fiscal Quarter ending on or about December 31, 2005 shall be implemented quarterly on a prospective basis, commencing on adjusted monthly and retroactively effective as of the first day of the a calendar month that begins after based upon the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level information set forth in the foregoing grid, until Borrowing Base Certificate for the date of the delivery of a Compliance Certificate demonstrating that such an increase is not requiredprior month. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the first day following the date on which such Event of Default is waived or cured.
(B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum.
(bc) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. The foregoing shall not be given effect, however, in respect of the calculation of Financial Covenants relating to scheduled principal payments.
(cd) All computations of Fees calculated on a per annum basis and interest based on the LIBOR Rate shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. All computations of interest based on the Base Rate shall be made by Agent on the basis of a 365/366-day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Base Rate is a floating rate determined for each day. Each determination by Agent of interest rates and Fees hereunder shall shall, absent manifest error, be presumptive evidence of the correctness of such rates and Fees.
(de) So long as an Event of Default has occurred and is continuing under Section 8.1(a10.1(a), (h) or (i), or the interest rates applicable to the Loans shall be increased by four percentage points (4%) per annum, and so long as any other Event of Default (except under Section 10.1(a) to the extent the following sentence shall apply) has occurred and is continuing and at the election of Agent (or upon the written request of Requisite Lenders) Lenders confirmed by written notice from Agent to Borrowerthe Borrowers, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased to the rate per annum which is determined by adding two percent percentage points (2.02%) per annum to annum, above the Applicable Margin then in effect for such Loans (plus the LIBOR Rate or Index Rate, as the case may be) or to the rate rates of such Fees interest otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “Default Rate”), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of such the applicable Event of Default until that Event of Default is cured or waivedwaived and shall be payable upon demand.
(ef) Subject to the conditions precedent set forth in Section 2.2, Borrower the Borrowers shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Base Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index a Base Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b2.10(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 100,000 and integral multiples of $1,000,000 100,000 in excess of such amount. Any such election must be made by 11:00 a.m. noon (Chicago New York time) on the Third third Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower wishes the Borrowers wish to convert any Index Base Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower the Borrowers in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. noon (Chicago New York time) on the Third third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 3.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index a Base Rate Loan at the end of its LIBOR Period. Borrower The Borrowers must make such election by notice to Agent in writing, including by Electronic Transmissiontelecopy or overnight courier. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion/Continuation”) in the form of Exhibit 1.5(e2.4(f).
(fg) Notwithstanding anything to the contrary set forth in this Section 1.52.4, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate. If, due to any circumstance whatsoever, fulfillment of any provision hereof, at the time performance of such provision shall be due, shall exceed any such Maximum Lawful Rate, then, the obligation to be so fulfilled shall be reduced to such lawful limit, and, if Borrowers shall have paid interest or any other charges of any kind which might be deemed to be interest under applicable law in excess of the Maximum Lawful Rate, then such excess shall be applied first to any unpaid fees and charges hereunder, then to unpaid principal balance owed by Borrowers hereunder, and if the then remaining excess interest is greater than the previously unpaid principal balance, Agent shall promptly refund such excess amount to Borrowers and the provisions hereof shall be deemed amended to provide for such permissible rate. The terms and provisions of this Section 2.4(g) shall control to the extent any other provision of any Loan Document is inconsistent herewith.
Appears in 1 contract
Interest and Applicable Margins. (a) Borrower shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the various Loans being made by each LenderLenders, in arrears on each applicable Interest Payment Date, at (i) the Index Base Rate plus the Applicable Revolver Index Base Rate Margin per annum or, (ii) at the election of BorrowerBorrower and subject to the other provisions of this Agreement respecting the availability of LIBOR Rate, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
(A) . As of the First A&R Closing DateDate and until adjusted as described below, the Applicable Margins were are as follows: Applicable Revolver Index Base Rate Margin 0.00 3.50% Applicable Revolver LIBOR Margin 1.25 4.50% Applicable L/C Margin 1.25 % Applicable Unused Line Fee Margin 0.375 % At all times from and after the First A&R Closing Date until (but excluding) the Closing Date, the The Applicable Margins shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.00 % 0.00 % 0.25 % 0.50 % Applicable Revolver LIBOR Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable L/C Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable Unused Line Fee Margin 0.375 % 0.375 % 0.25 % 0.25 % Adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on or about December 31, 2005 shall be implemented quarterly on a prospective basisshall, commencing on the first day of the calendar month that begins after following the date of delivery to Lenders first anniversary of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph Closing Date, be adjusted prospectively on a quarterly basis as determined by Borrower's financial performance, commencing on the fifth (b5th) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the Business Day after delivery of such Compliance CertificateBorrower's quarterly Financial Statements. Adjustments in Applicable Margins shall be determined by reference to the following grid: APPLICABLE BASE APPLICABLE IF TOTAL LEVERAGE RATIO IS: RATE MARGIN LIBOR MARGIN --------------------------- --------------- ------------ > or = 4.0: 1.0 3.50% 4.50% < 4.0: 1.0, Borrower shall deliver to Agent and Lenders a certificatebut > or = 3.5: 1.0 3.25% 4.25% < 3.5: 1.0, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, but > or any change in, the Applicable Margins. = 3.0: 1.0 3.00% 4.00% < 3.0: 1.0 2.75% 3.75% Failure to timely deliver such Compliance Certificate shallFinancial Statements shall at the election of Agent, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date first day of the first calendar month following the delivery of a Compliance Certificate those Financial Statements demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the first day of the first calendar month following the date on which such Event of Default is waived or cured.
(B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum.
(b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR PeriodPeriod and except for purpose of calculating financial covenant compliance) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis and interest with respect to the Base Rate shall be made by Agent on the basis of a 365/366-day year and all computations of interest with respect to the LIBOR Rate shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Base Rate is a floating rate determined for each day. Each determination by Agent of an interest rates rate and Fees hereunder shall be presumptive evidence of the correctness of such rates and Fees, absent manifest error.
(d) So long as an Event of Default has occurred and is continuing under Section 8.1(a), (h) or (i), or so long as any other Event of Default has occurred and is continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to Borrower, the interest rates applicable to the Loans and the Letter of Credit Fees Term Loan shall be increased to the rate per annum which is determined by adding two percent percentage points (2.02%) per annum to above the Applicable Margin then in effect for such Loans (plus the LIBOR Rate or Index Rate, as the case may be) or to the rate rates of such Fees interest otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “"Default Rate”"), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at Obligations during the Default Rate shall be payable upon demand and shall accrue from the initial date continuance of such Default or Event of Default until that such Default or Event of Default is cured or waivedwaived in writing.
(e) Subject to the conditions precedent set forth in Section 2.2So long as no Default of Event of Default has occurred and is continuing, Borrower shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans the Term Loan from a Base Rate Loan to a LIBOR Loan; (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iiiii) convert any LIBOR Loan to an Index a Base Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b1.10(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, ; or (iviii) continue all or any portion of any the Term Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued LIBOR Loan shall commence on the first day after the last day of the LIBOR Period of the LIBOR Loan to be continued. Any portion of the Term Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 500,000 and integral multiples of $1,000,000 100,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago New York time) on the Third Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (32) the date on which Borrower wishes to convert any Index Base Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower in such election. If no such timely election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago time) on the Third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 shall not have been satisfiedcontinuing), that LIBOR Loan shall be converted to an Index Base Rate Loan at the end of its LIBOR Period. Borrower must make such election by notice to Agent in writing, including by Electronic Transmissiontelecopy or overnight courier. In the case of any conversion to or continuationcontinuation of a LIBOR Loan, such election must be made pursuant to a written notice (a “"Notice of Conversion/Continuation”") in the form of Exhibit 1.5(e1.4(e).
(f) Notwithstanding anything to the contrary set forth in this Section 1.51.4, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “"Maximum Lawful Rate”"), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate.this
Appears in 1 contract
Sources: Term Loan Agreement (Northland Cable Properties Seven Limited Partnership)
Interest and Applicable Margins. (a) Borrower Borrowers shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the following rates: (i) with respect to the Revolving Credit Advances, the Index Rate plus the Applicable Revolver Index Margin per annum or, at the election of BorrowerBorrower Representative, the applicable Applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
, based on the aggregate Revolving Credit Advances outstanding from time to time; and (Aii) with respect to the Swing Line Loan, the Index Rate plus the Applicable Index Margin per annum. As of the First A&R Closing Restatement Date, the Applicable Margins were are as follows: Applicable Revolver Index Margin 0.00 0.00% Applicable Revolver LIBOR Margin 1.25 1.50% Applicable L/C Margin 1.25 1.50% Applicable Unused Line Fee Margin 0.375 0.375% At all times from and after the First A&R Closing Date until (but excluding) the Closing Date, the The Applicable Margins shall be adjusted (up or down) prospectively on a quarterly basis as determined by Borrowers' consolidated financial performance, commencing with the first day of the first calendar month that occurs more than five (5) days after delivery of Borrowers' quarterly Financial Statements to Lenders for the Fiscal Quarter ending March 31, 2004. Adjustments in Applicable Margins shall be determined by reference to the following grids: IF FIXED CHARGE LEVEL OF COVERAGE RATIO IS: APPLICABLE MARGINS: ----------------- ------------------ > 5.25:1.00 Level I < or = 5.25:1.00, but > 4.25:1.00 Level II < or = 4.25:1.00, but > 3.25:1.00 Level III < or = 3.25:1.00, but > 1.00:1.00 Level IV < or = 1.00:1.00 Level V APPLICABLE MARGINS -------------------------------------------------------------- LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V ------- -------- --------- -------- ------- Applicable Revolver Index Margin 0.00 0.00% 0.00 0.00% 0.25 0.25% 0.50 0.50% 1.00% Applicable Revolver LIBOR Margin 1.25 1.25% 1.50 1.50% 1.75 1.75% 2.00 2.00% 2.50% APPLICABLE MARGINS -------------------------------------------------------------- LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V ------- -------- --------- -------- ------- Applicable L/C Margin 1.25 1.25% 1.50 1.50% 1.75 1.75% 2.00 2.00% 2.50% Applicable Unused Line Fee Margin 0.375 0.25% 0.375 0.375 0.50% 0.25 0.50% 0.25 % Adjustments All adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on or about December after March 31, 2005 2004 shall be implemented quarterly on a prospective basis, commencing on the first day of the for each calendar month that begins commencing at least five (5) days after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph quarterly unaudited or annual audited (bas applicable) of Annex E with respect to a Fiscal Quarter Financial Statements evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificatethose Financial Statements, Borrower Representative shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate Financial Statements shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date first day of the first calendar month following the delivery of a Compliance Certificate those Financial Statements demonstrating that such an increase is not required. If an a Default or Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the first day of the first calendar month following the date on which such Default or Event of Default is waived or cured.
(B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum.
(b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent of an interest rates rate and Fees hereunder shall be presumptive evidence of the correctness of such rates final, binding and Feesconclusive on Borrowers, absent manifest error.
(d) So long as an Event of Default has occurred and is continuing under Section 8.1(a), (h) or (i), ) or so long as any other Default or Event of Default has occurred and is continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to BorrowerBorrower Representative, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased to the rate per annum which is determined by adding two percent percentage points (2.02%) per annum to above the Applicable Margin then in effect for such Loans (plus the LIBOR Rate rates of interest or Index Rate, as the case may be) or to the rate of such Fees otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “"Default Rate”"), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of such Default or Event of Default until that Default or Event of Default is cured or waivedwaived and shall be payable upon demand.
(e) Subject to the conditions precedent set forth in Section 2.2, Borrower Representative shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 and integral multiples of $1,000,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago time) on the Third Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago time) on the Third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower must make such election by notice to Agent in writing, including by Electronic Transmission. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion/Continuation”) in the form of Exhibit 1.5(e).
(f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate.
Appears in 1 contract
Sources: Credit Agreement (Brightpoint Inc)
Interest and Applicable Margins. (a) Borrower Borrowers shall pay interest to Agent, for the ratable benefit of Lenders Lenders, in accordance with the various Loans being made by each Lender (or in the case of the Swing Line Loan, for the benefit of the Swing Line Lender), in arrears on each applicable Interest Payment Date, at the following per annum rates: with respect to the Revolving Credit Advances which are designated as Index Rate Loans, the Index Rate plus the Applicable Revolver Index Margin per annum or, with respect to Revolving Credit Advances which are designated as LIBOR Loans, at the election of BorrowerBorrower Representative, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
Margin; and (Aii) with respect to the Swing Line Loan, the Index Rate plus the Applicable Revolver Index Margin. As of the First A&R Closing Date, the Applicable Margins were are as follows: Applicable Revolver Index Margin 0.00 % Applicable Revolver LIBOR Margin 1.25 1.50 % Applicable L/C Margin 1.25 1.50 % Applicable Unused Line Fee Margin 0.375 % At all times from and after the First A&R Closing Date until (but excluding) the Closing Date, the The Applicable Margins shall be adjusted (up or down) prospectively on a quarterly basis on the first Business Day of each Fiscal Quarter as determined by average daily Borrowing Availability for the immediately preceding Fiscal Quarter, commencing October 1, 2006. Adjustments in Applicable Margins will be determined by reference to the following grids: Applicable Revolver If Average Daily Borrowing Availability for Revolving LIBOR and the Immediately Preceding Fiscal Quarter is: Revolving Index Margin 0.00 L/C > $40,000,000 - 0.75% 0.00 0.75 % 0.25 > $30,000,000 and < $40,000,000 - 0.50% 0.50 1.00 % Applicable Revolver LIBOR Margin > $20,000,000 and < $30,000,000 - 0.25% 1.25 % < $20,000,000 0.00% 1.50 % 1.75 % 2.00 % Applicable L/C Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable Unused Line Fee Margin 0.375 % 0.375 % 0.25 % 0.25 % Adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on or about December 31, 2005 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to If any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If Default or an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured.
(B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the first calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until following the date on which such Event all Defaults or Events of Default is are waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum.
(b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a 360-day year (except interest on Index Rate Loans shall be made on the basis of a 365/366 day year), in each case for the actual number of days occurring in the period for which such Fees and interest and Fees are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent of an interest rates rate and Fees hereunder shall be presumptive evidence of the correctness of such rates final, binding and Feesconclusive on Borrowers, absent manifest error.
(d) So long as an Event of Default has occurred and is continuing under Section 8.1(a6.1(a), (hf) or (i)g) and without notice of any kind, or so long as any other Event of Default has occurred and is continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to BorrowerBorrower Representative, the interest rates applicable to the Loans and the Letter of Credit Fees Fee shall be increased to the rate per annum which is determined by adding two percent percentage points (2.02%) per annum to above the Applicable Margin then in effect for such Loans (plus the LIBOR Rate rates of interest or Index Rate, as the case may be) or to the rate of such Fees Fee otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “Default Rate”), ) and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of any such Event of Default until that such Event of Default is cured or waived.
(e) Subject to waived and shall be payable upon demand, but in any event, shall be payable on the conditions precedent next regularly scheduled payment date set forth in Section 2.2, herein for such Obligation. Borrower Representative shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of the LIBOR breakage costs Breakage Fee in accordance with Section 1.13(b1.3(e) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 250,000 and integral multiples of $1,000,000 100,000 in excess of such amount. Any such election must be made by 11:00 a.m. 1:00 p.m. (Chicago New York time) on the Third third Business Day prior to (1) the date of any proposed Revolving Credit Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower Representative wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower Representative in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. 1:00 p.m. (Chicago New York time) on the Third third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 shall not have been satisfied)thereto, that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower Representative must make such election by notice to Agent in writing, including by Electronic Transmissionfax or overnight courier. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion/Continuation”) in the form of Exhibit 1.5(e1.2(e). No Loan shall be made, converted into or continued as a LIBOR Loan, if an Event of Default has occurred and is continuing and Agent or Requisite Lenders have determined not to make or continue any Loan as a LIBOR Loan as a result thereof.
(fe) Notwithstanding anything to the contrary set forth in this Section 1.51.2, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower Borrowers shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of interest and in the manner provided in Sections 1.2(a) through (e), unless and until the rate of interest again exceeds the Maximum Lawful Rate, and at that time this paragraph shall again apply. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum Lawful Rate is calculated pursuant to this paragraph, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which such calculation is made. If, notwithstanding the provisions of this Section 1.2(f), a court of competent jurisdiction shall determine by a final, non-appealable order that a Lender has received interest hereunder in excess of the Maximum Lawful Rate, Agent shall, to the extent permitted by applicable law, promptly apply such excess as specified in Section 1.5(e) and thereafter shall refund any excess to Borrowers or as such court of competent jurisdiction may otherwise order.
Appears in 1 contract
Sources: Credit Agreement (Golfsmith International Holdings Inc)
Interest and Applicable Margins. (a) Borrower shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the various Revolving Loans being made by each Lender, in arrears on each applicable Interest Payment Date, with respect to the Revolving Credit Advances, at the Index Rate plus the Applicable Revolver Index Margin per annum or, at based on the election of Borrower, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
(A) As of the First A&R Closing Date, the Applicable Margins were as follows: aggregate Revolving Credit Advances outstanding from time to time. The Applicable Revolver Index Margin 0.00 % Margin, Applicable Revolver LIBOR Margin 1.25 % Applicable Standby L/C Margin 1.25 % Fee and Applicable Unused Line Fee Margin 0.375 will be 2.25%, 2.00% At all times from and after the First A&R Closing Date until (but excluding) .375% per annum, respectively, as of the Closing Date, the . The Applicable Margins shall will be adjusted (up or down) prospectively on a quarterly basis as determined by Borrower's financial performance, commencing with the first day of the first calendar month that occurs more than five (5) days after delivery of Borrower's quarterly Financial Statements to Lenders for the applicable Fiscal Quarter(s) set forth below. Adjustments in Applicable Margins will be determined by reference to the following grids: APPLICABLE MARGIN FOR FISCAL QUARTER ENDING DECEMBER 31, 1999: If Adjusted EBITDA is: Level of Applicable Margins: >$15,000,000 Level I >$13,000,000, but < $15,000,000 Level II >$ 9,000,000, but < $13,000,000 Level III >$ 8,000,000, but < $ 9,000,000 Level IV < $ 8,000,000 Level V APPLICABLE MARGINS FOR 2 FISCAL QUARTERS ENDING MARCH 31, 2000: If Adjusted EBITDA is: Level of Applicable Margins: >$23,000,000 Level I >$19,500,000, but < $23,000,000 Level II >$13,500,000, but < $19,500,000 Level III >$12,000,000, but < $13,500,000 Level IV <$12,000,000 Level V APPLICABLE MARGINS FOR 3 FISCAL QUARTERS ENDING JUNE 30, 2000: If Adjusted EBITDA is: Level of Applicable Margins: >$30,500,000 Level I >$26,000,000, but < $30,500,000 Level II >$18,500,000, but < $26,000,000 Level III >$16,500,000, but < $18,500,000 Level IV <$16,500,000 Level V APPLICABLE MARGINS FOR 4 FISCAL QUARTERS ENDING SEPTEMBER 30, 2000: If Adjusted EBITDA is: Level of Applicable Margins: >$35,000,000 Level I >$32,500,000, but < $35,000,000 Level II >$24,000,000, but < $32,500,000 Level III >$21,000,000, but < $24,000,000 Level IV <$21,000,000 Level V APPLICABLE MARGINS FOR 4 FISCAL QUARTERS ENDING DECEMBER 31, 2000 AND THEREAFTER: If Adjusted EBITDA is: Level of Applicable Margins: >$38,000,000 Level I >$35,000,000, but < $38,000,000 Level II >$26,000,000, but < $35,000,000 Level III >$23,000,000, but < $26,000,000 Level IV <$23,000,000 Level V Applicable Margins Level I Level II Level III Level IV Level V Applicable Revolver Index 1.75% 2.0% 2.25% 2.50% 2.75% Margin 0.00 % 0.00 % 0.25 % 0.50 % Applicable Revolver LIBOR Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable Standby L/C Margin 1.25 Fee 1.75% 1.50 2.0% 1.75 2.0% 2.00 2.0% 2.25% Applicable Unused Line Fee Margin 0.375 .25% 0.375 .375% 0.25 .375% 0.25 .375% Adjustments .50% All adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on or about after December 31, 2005 1999 shall be implemented quarterly on a prospective basis, commencing on the first day of the for each calendar month that begins commencing at least five (5) days after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph quarterly unaudited or annual audited (bas applicable) of Annex E with respect to a Fiscal Quarter Financial Statements evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificatethose Financial Statements, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate Financial Statements shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date first day of the first calendar month following the delivery of a Compliance Certificate those Financial Statements demonstrating that such an increase is not required. If a Default or an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured.
(B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the first calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until following the date on which such Default or Event of Default is waived or cured. After Notwithstanding anything to the Closing Datecontrary set forth herein, the Applicable Unused Line Fee Margin Margins shall not be adjusted as follows: down unless Excess Cash Flow exists for the four most recent Fiscal Quarters then ended (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during or with respect to any Fiscal Quarter ending on or before September 30, 2000, the period for which commencing on October 1, 1999 and ending on the Fee under Section 1.9(b) is due is equal to or greater than 50% last day of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annumFiscal Quarter).
(b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a three hundred and sixty (360-) day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent of an interest rates rate and Fees hereunder shall be presumptive evidence of the correctness of such rates and Feesconclusive, absent manifest error.
(d) So long (i) as an Event of Default has occurred and is continuing under Section 8.1(a), (h8.1(h) or (i), or (ii) so long as any other Event of Default has shall have occurred and is be continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to Borrower, then the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased to the rate per annum which is determined by adding two percent (2.02%) per annum to above the Applicable Margin then in effect for such Loans (plus the LIBOR Rate rates of interest or Index Rate, as the case may be) or to the rate of such Fees otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “"Default Rate”"), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of such Default or Event of Default until that Default or Event of Default is cured or waivedwaived and shall be payable upon demand.
(e) Subject to the conditions precedent set forth in Section 2.2, Borrower shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 and integral multiples of $1,000,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago time) on the Third Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago time) on the Third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower must make such election by notice to Agent in writing, including by Electronic Transmission. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion/Continuation”) in the form of Exhibit 1.5(e).
(f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “"Maximum Lawful Rate”"), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that which would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of interest and in the manner provided in Sections 1.5(a) through (d) above, unless and until the rate of interest again exceeds the Maximum Lawful Rate, and at that time this paragraph shall again apply. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that which such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum Lawful Rate is calculated pursuant to this paragraph, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which such calculation is made. If, notwithstanding the provisions of this Section 1.5(e), a court of competent jurisdiction shall finally determine that a Lender has received interest hereunder in excess of the Maximum Lawful Rate, Agent shall, to the extent permitted by applicable law, promptly apply such excess in the order specified in Section 1.11 and thereafter shall refund any excess to Borrower or as a court of competent jurisdiction may otherwise order.
Appears in 1 contract
Interest and Applicable Margins. (a) Borrower Borrowers shall pay interest to Administrative Agent, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the following rates: (i) with respect to the Revolving Credit Advances, the Index Rate plus the Applicable Revolver Index Margin per annum or, at the election of BorrowerBorrower Representative, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
, based on the aggregate Revolving Credit Advances outstanding from time to time and (Aii) As of with respect to the First A&R Closing DateSwing Line Loan, the Applicable Margins were as follows: Index Rate plus the Applicable Revolver Index Margin 0.00 % per annum. The Applicable Revolver Index Margin, and Applicable Revolver LIBOR Margin 1.25 Margin, will be 0.25%, and 1.50% Applicable L/C Margin 1.25 % Applicable Unused Line Fee Margin 0.375 % At all times from and after per annum, respectively, as of the First A&R Closing Date until (but excluding) the Closing Effective Date, the . The Applicable Margins shall will be adjusted (up or down) prospectively on a quarterly basis as determined by Parent's consolidated financial performance for the trailing four quarters most recently ended, commencing on June 1, 2003 (the "Initial Adjustment Date"). Adjustments in Applicable Margins will be determined by reference to the following grids: IF FIXED CHARGE IF AVERAGE EXCESS LEVEL OF COVERAGE RATIO IS: AVAILABILITY FOR QUARTER IS: APPLICABLE MARGINS: ----------------- --------------------------- ------------------ > or = 1.1:1.0 > or = $50MM Level I > or = 1.1:1.0 < $50MM > or = $40MM Level II > or = 1.1:1.0 <$40MM Level III <1.1:1.0 > or = $50MM Level IV <1.1:1.0 <$50MM > or = $40MM Level V <1.1:1.0 <$40MM > or = $30MM Level VI <1.1:1.0 <$30MM ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ------- -------- --------- -------- ------- -------- --------- Applicable Revolver Index Margin 0.00 0.25% 0.00 0.25% 0.25 0.50% 0.50 0.25% 0.50% 0.75% 1.00% Applicable Revolver LIBOR Margin 1.25 1.5% 1.50 1.75% 1.75 2.00% 2.00 1.75% Applicable L/C Margin 1.25 2.00% 1.50 2.25% 1.75 % 2.00 2.50% Applicable Unused Line Facility Fee 0.25% 0.25% 0.375% 0.25% 0.25% 0.375% 0.375% For purposes of this Section 1.5(a), the Fixed Charge Coverage Ratio shall be calculated without adjustments for any Special Capital Expenditures. Notwithstanding the foregoing, the Applicable Margins with respect to the aggregate amount of Advances outstanding on any date in excess of the Aggregate Borrowing Base, as of such date, determined with reference solely to Eligible Inventory shall be equal to the then otherwise Applicable Margin 0.375 % 0.375 % 0.25 % 0.25 % Adjustments plus .50%. All adjustments in the Applicable Margins commencing with after the Fiscal Quarter ending on or about December 31, 2005 shall Initial Adjustment Date will be implemented quarterly on a prospective basis, commencing on the first day of the for each calendar month that begins commencing after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph quarterly unaudited or annual audited (bas applicable) Financial Statements of Annex E with respect to a Fiscal Quarter Parent evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificatethose Financial Statements, Borrower Representative shall deliver to Administrative Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate Financial Statements shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date first day of the first calendar month following the delivery of a Compliance Certificate those Financial Statements demonstrating that such an increase is not required. If an Event of Default has shall have occurred and is or be continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured.
(B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the first calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until following the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum.
(b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis and interest shall be made by Administrative Agent on the basis of a three hundred and sixty (360-) day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Rate is a floating rate shall be determined for each day based upon the Index Rate as in effect each day. Each determination by Administrative Agent of an interest rates and Fees rate hereunder shall be presumptive evidence of the correctness of such rates and Feesconclusive, absent error.
(d) So long as an any Event of Default has shall have occurred and is continuing under Section 8.1(a)be continuing, (h) or (i), or so long as any other Event of Default has occurred and is continuing and at the election of Administrative Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Administrative Agent to BorrowerBorrower Representative, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased to the rate per annum which is determined by adding two percent percentage points (2.02%) per annum to above the Applicable Margin then in effect for such Loans (plus the LIBOR Rate rates of interest or Index Rate, as the case may be) or to the rate of such Fees otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “"Default Rate”"), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of such Event of Default until that Event of Default is cured or waivedwaived and shall be payable upon demand.
(e) Subject So long as no Default or Event of Default shall have occurred and be continuing, and subject to the additional conditions precedent set forth in Section 2.2, Borrower Representative shall have the option to (i) request that any Revolving Credit Advance Advances be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 10,000,000 and integral multiples of $1,000,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago New York time) on the Third third (3rd) Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower Representative wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower Representative in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago New York time) on the Third third (3rd) Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has shall have occurred and is be continuing or if the additional conditions precedent set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower Representative must make such election by notice to Administrative Agent in writing, including by Electronic Transmissiontelecopy or overnight courier. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “"Notice of Conversion/Continuation”") in the form of Exhibit 1.5(e).
(f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “"Maximum Lawful Rate”"), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower Borrowers shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Administrative Agent, on behalf of Lenders, is equal to the total interest that which would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Initial Closing Date or the Effective Date as otherwise provided in this Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of interest and in the manner provided in Sections 1.5(a) through (e) above, unless and until the rate of interest again exceeds the Maximum Lawful Rate, and at that time this paragraph shall again apply. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that which such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum Lawful Rate is calculated pursuant to this paragraph, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which such calculation is made. If, notwithstanding the provisions of this Section 1.5(f), a court of competent jurisdiction shall finally determine that a Lender has received interest hereunder in excess of the Maximum Lawful Rate, Administrative Agent shall, to the extent permitted by applicable law, promptly apply such excess in the order specified in Section 1.11 and thereafter shall refund any excess to Borrowers or as a court of competent jurisdiction may otherwise order.
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