Fees and Reimbursement. (a) Company hereby agrees to pay to Bank: (i) Before 2:00 p.m., New York time, on each date that any amount is drawn under the Letter of Credit pursuant to a Principal Drawing or an Interest Drawing, Company shall pay a sum equal to the amount so drawn under the Letter of Credit plus (x) interest accrued, if any, on the amount so drawn under the Letter of Credit as determined by clause (iv) of this subsection (a) of this Section 2.2, plus (y) any and all charges and expenses which Bank may pay or incur relative to such drawing under the Letter of Credit, plus (z) a fee in the amount of Two Hundred Dollars ($200.00) for that drawing under the Letter of Credit; (ii) Upon a Remarketing Drawing under the Letter of Credit, provided there is then no uncured Event of Default, Company shall have until the Expiration Date to reimburse Bank for the amount of the Remarketing Drawing, subject to the right of Bank to require redemption of the Notes pursuant to Section 7.2 hereof. Any amounts received by Bank from the remarketing of Notes purchased out of a Remarketing Drawing and registered to Bank or, at the direction of Bank, to Company, shall be applied pro rata against Company’s obligation to reimburse Bank for the amount of the Remarketing Drawing. The amount of any unreimbursed Remarketing Drawing shall bear interest from the date of the Remarketing Drawing at a rate per annum equal to the Prime Rate plus one percent (1.0%). Such interest shall be payable on each Interest Payment Date for so long as such Remarketing Drawing or any portion thereof is unreimbursed. The payments of interest hereunder shall be credited pro rata against the interest accrued on the Notes pledged to Bank under the Note Pledge. Interest hereunder shall be calculated based on a 360-day year but calculated for the actual number of days elapsed; (iii) Upon each transfer of the Letter of Credit in accordance with its terms and as a condition thereto, a transfer fee of Five Hundred Dollars ($500.00) and such additional amounts as shall be necessary to cover the reasonable costs and expenses to Bank incurred in connection with such transfer; (iv) Company shall pay interest at the Default Rate, payable on demand, on any and all amounts of any Principal Drawing, Interest Drawing and/or Remarketing Drawing not paid by Company when due under any section of this Reimbursement Agreement from the date such amounts become due until payment in full; (v) For any payment of principal and/or interest not paid within ten (10) Business Days after such payment is due, Company shall pay a late charge of an amount equal to the greater of five percent (5%) of the amount of the payment or $50.00; (vi) On demand, reasonable costs, fees and expenses incurred by Bank in connection with the issuance of the Letter of Credit or the preparation or execution of any documents or opinions related thereto; (vii) On demand, any and all reasonable expenses incurred by Bank in enforcing any of its rights under this Reimbursement Agreement, or any of the Credit Documents; (viii) On or prior to the Closing Date, any and all appraisal fees relating to the appraisal of the Premises; and (ix) On or prior to Closing Date, a one-time origination fee in the amount of $5,134.00. (b) Company hereby agrees to pay to Bank commissions (whether individually or collectively, the “Letter of Credit Fee”) equal to an amount calculated at the percentage rate of the maximum respective “Fee Calculation Amount” as hereinafter defined, available on each date of payment of the Letter of Credit Fee, as set forth in the following table based upon the Company’s Funded Debt Ratio on a rolling 12 month/four fiscal quarter period as reflected in the financial information for each of the immediately preceding four fiscal quarters of the Company (: I >1.5 to 2.00 1.35% II >1.0 to 1.0 <1.5 to 1.0 1.00% III <1.0 to 1.0 .75% From the Closing Date until receipt of the audited financial statements for the Company for Fiscal Year end 2006 and Fiscal Quarter ended February 29, 2008 the annual Letter of Credit Fee shall be set at “Level III” as described in the above table. Changes in the Annual Letter of Credit Fee resulting from changes in the Funded Debt Ratio shall become effective on the date (the “Adjustment Date”) on which quarterly financial statements delivered to the Bank pursuant to Section 6.1, hereof, (but in any event not later than the 45th day after the end of the Fiscal Quarters of the Borrower ending on February 28, May 31, August 30 and the ninetieth day after the end of the Fiscal Quarter of the Borrower ending on November 30) beginning with respect to changes in the Funded Debt Ratio with the first Fiscal Quarter of the Borrower for which statements/reports are provided or delivered after the Closing Date, whether or not such Fiscal Quarter ended on, before or after, the Closing Date, and shall remain in effect until the next change to be effected pursuant to this paragraph. The period from an Adjustment Date until the day immediately preceding the next following Adjustment Date is referred to herein as the “Fee Calculation Amount Period”. The Applicable Letter of Credit Fee for any given Fee Calculation Amount Period shall be reduced from the Applicable Letter of Credit Fee in effect for the immediately preceding Fee Calculation Amount Period if any only if as of the immediately preceding May 31 and November 30 the Covenant Compliance Certificates prepared and submitted by the Company to the Bank in accordance with Section 6.1, hereof evidence that as of the date of such certificate(s) the Borrower was in compliance with the covenants set forth in section6.1, hereof. If the Covenant Compliance Certificate delivered by the Company to the Bank for the fiscal quarter ended May 31 and November 30, evidence that and/or the Company as of May 31 and November 30 failed to comply with the Financial Covenants, then the Applicable Letter of Credit Fee shall be the greater of (i) the Annual Letter of Credit Fee in effect on the date immediately preceding the applicable Adjustment Date and (ii) the Letter of Credit Fee Calculation Amount applicable to the Company based on the greater of (a) its Funded Debt Ratio for the most recently completed Fiscal Quarter or (b) the Letter of Credit Fee Calculation Amount established pursuant to the immediately following sentence, if applicable. If any financial statements or Compliance Certificates referred to above are not delivered within the time periods specified above, then, until such financial statements are delivered, the Letter of Credit Fee as at the end of the fiscal period that would have been covered thereby shall for the purposes of this definition be deemed to be 1.35% of the Fee Calculation Amount. Each determination of the Funded Debt Ratio pursuant to this section shall be made with respect to the period of four consecutive Fiscal Quarters of the Borrower ending at the end of the period covered by the relevant financial statements. The Letter of Credit Fee shall be payable in annual installments in advance on each anniversary of the Date of Issuance until the Expiration Date of such Letter Credit; provided, however, that upon the Date of Issuance of the Letter of Credit, Company shall pay an installment of the Letter of Credit Fee for the period from the Date of Issuance to and including the day before the anniversary of the Date of Issuance in 2007. The “Fee Calculation Amount” shall be the sum of (i) the maximum amount then available to be drawn under the Letter of Credit with respect to the Principal Commitment plus (ii) the maximum amount then available to be drawn under the Letter of Credit with respect to the Interest Commitment. If the Letter of Credit is terminated prior to the Expiration Date, the Letter of Credit Fee shall be refunded to Company for any calendar quarter that the Letter of Credit will not be outstanding provided that Company returns or causes the return of the Letter of Credit to Bank prior to the start of such calendar quarter. (c) Company shall pay to Bank all reasonable legal, documentation, search and recording fees, and construction monitoring costs associated with closing and funding this transaction; (d) If any change in any law or regulation or in the interpretation thereof by any court or administrative or governmental authorities charged with the administration thereof shall impose, modify or deem applicable any reserve, special deposit or similar requirement which would impose on Bank any reasonable additional costs (i) generally upon the issuance or maintenance of letters of credit by Bank; (ii) specifically in respect of this Reimbursement Agreement or the Letter of Credit; or (iii) in respect of any capital adequacy requirement (including, without limitation, a requirement which affects the manner in which Bank allocates capital resources to its commitments), and the result of such imposition of additional costs as described in clause (i), (ii), or (iii) above shall be to increase the cost to Bank of issuing or maintaining the Letter of Credit (which increase in cost shall be the result of Bank’s reasonable allocation of the aggregate of such cost increases resulting from such events), then (x) within thirty (30) days of Bank’s obtaining knowledge of such change in law, regulations or interpretation thereof, Bank shall so notify Company, and (y) upon receipt of such notice from Bank, accompanied by a certificate as to such increased cost, Company shall pay as of the effective date of such change or interpretation all reasonable additional amounts which are necessary to compensate Bank for such increased cost incurred by Bank. The certificate of Bank as to such increased costs shall show the manner of calculation and shall be conclusive (absent manifest error) as to the amount thereof; and (e) Company’s obligations to make payments to Bank under this Section 2 shall be deemed satisfied to the extent of payments made by the Trustee to Bank from funds on deposit with and held by the Trustee pursuant to the Indenture.
Appears in 1 contract
Fees and Reimbursement. (a) Company hereby agrees to pay to Bank:
(i) Before 2:00 p.m., New York time, on each date that any amount is drawn under the Letter of Credit pursuant to a Principal Drawing or an Interest Drawing, Company shall pay a sum equal to the amount so drawn under the Letter of Credit plus (x) interest accrued, if any, on the amount so drawn under the Letter of Credit as determined by clause (iv) of this subsection (a) of this Section 2.2, plus (y) any and all charges and expenses which Bank may pay or incur relative to such drawing under the Letter of Credit, plus (z) a fee in the amount of Two Hundred Dollars ($200.00) for that drawing under the Letter of Credit;
(ii) Upon a Remarketing Drawing under the Letter of Credit, provided there is then no uncured Event of Default, Company shall have until the Expiration Date to reimburse Bank for the amount of the Remarketing Drawing, subject to the right of Bank to require redemption of the Notes Bonds pursuant to Section 7.2 hereof. Any amounts received by Bank from the remarketing of Notes Bonds purchased out of a Remarketing Drawing and registered to Bank or, at the direction of Bank, to Company, shall be applied pro rata against Company’s 's obligation to reimburse Bank for the amount of the Remarketing Drawing. The amount of any unreimbursed Remarketing Drawing shall bear interest from the date of the Remarketing Drawing at a rate per annum equal to the Prime Rate plus one percent (1.0%). Such interest shall be payable on each Interest Payment Date for so long as such Remarketing Drawing or any portion thereof is unreimbursed. The payments of interest hereunder shall be credited pro rata against the interest accrued on the Notes Bonds pledged to Bank under the Note Bond Pledge. Interest hereunder shall be calculated based on a 360-day year but calculated for the actual number of days elapsed;
(iii) Upon each transfer of the Letter of Credit in accordance with its terms and as a condition thereto, a transfer fee of Five Hundred Dollars ($500.00) and such additional amounts as shall be necessary to cover the reasonable costs and expenses to Bank incurred in connection with such transfer;
(iv) Company shall pay interest at the Default Rate, payable on demand, on any and all amounts of any Principal Drawing, Interest Drawing and/or Remarketing Drawing not paid by Company when due under any section of this Reimbursement Agreement from the date such amounts become due until payment in full;
(v) For any payment of principal and/or interest not paid within ten (10) Business Days after such payment is due, Company shall pay a late charge of an amount equal to the greater of five percent (5%) of the amount of the payment or $50.00;
(vi) On demand, reasonable costs, fees and expenses incurred by Bank in connection with the issuance of the Letter of Credit or the preparation or execution of any documents or opinions related thereto;
(vii) On demand, any and all reasonable expenses incurred by Bank in enforcing any of its rights under this Reimbursement Agreement, or any of the Credit Documents;
(viii) On or prior to the Closing Date, any and all appraisal fees relating to the appraisal of the Premises; and
(ix) On or prior to Closing Date, a one-time origination fee in the amount of $5,134.0035,751.79.
(b) Company hereby agrees to pay to Bank commissions (whether individually or collectively, the “"Letter of Credit Fee”") equal to an amount calculated at the percentage rate of the maximum respective “"Fee Calculation Amount” " as hereinafter defined, available on each date of payment of the Letter of Credit Fee, as set forth in the following table based upon the Company’s 's Funded Debt Ratio on a rolling 12 month/four fiscal quarter period as reflected in the financial information for each of the immediately preceding four fiscal quarters year end of the Company (: (using a 360-day year but calculated on the number of actual days elapsed): -------------------------------------------------------------------------------- Level Funded Debt Ratio Annual Letter of Credit Fee (as a percentage of the Fee Calculation Amount) -------------------------------------------------------------------------------- I >1.5 greater than or equal to 2.00 2.0 to 1.0 1.90% -------------------------------------------------------------------------------- II greater than or equal to 1.0 to less than 1.0 2.0 to 1.0 1.35% II >-------------------------------------------------------------------------------- III less than 1.0 to 1.0 <1.5 to 1.0 1.00% III <1.0 to 1.0 .75% -------------------------------------------------------------------------------- From the Closing Date until receipt of the audited financial statements for the Company for Fiscal Year fiscal year end 2006 and Fiscal Quarter ended February 292003, 2008 the annual Letter of Credit Fee shall be set at “"Level III” II" as described in the above table. Changes in the Annual Letter of Credit Fee resulting from changes in the Funded Debt Ratio shall become effective on the date (the “Adjustment Date”) on which quarterly financial statements delivered to the Bank pursuant to Section 6.1, hereof, (but in any event not later than the 45th day after the end of the Fiscal Quarters of the Borrower ending on February 28, May 31, August 30 and the ninetieth day after the end of the Fiscal Quarter of the Borrower ending on November 30) beginning with respect to changes in the Funded Debt Ratio with the first Fiscal Quarter of the Borrower for which statements/reports are provided or delivered after the Closing Date, whether or not such Fiscal Quarter ended on, before or after, the Closing Date, and shall remain in effect until the next change to be effected pursuant to this paragraph. The period from an Adjustment Date until the day immediately preceding the next following Adjustment Date is referred to herein as the “Fee Calculation Amount Period”. The Applicable Letter of Credit Fee for any given Fee Calculation Amount Period shall be reduced from the Applicable Letter of Credit Fee in effect for the immediately preceding Fee Calculation Amount Period if any only if as of the immediately preceding May 31 and November 30 the Covenant Compliance Certificates prepared and submitted by the Company to the Bank in accordance with Section 6.1, hereof evidence that as of the date of such certificate(s) the Borrower was in compliance with the covenants set forth in section6.1, hereof. If the Covenant Compliance Certificate delivered by the Company to the Bank for the fiscal quarter ended May 31 and November 30, evidence that and/or the Company as of May 31 and November 30 failed to comply with the Financial Covenants, then the Applicable Letter of Credit Fee shall be the greater of (i) the Annual Letter of Credit Fee in effect on the date immediately preceding the applicable Adjustment Date and (ii) the Letter of Credit Fee Calculation Amount applicable to the Company based on the greater of (a) its Funded Debt Ratio for the most recently completed Fiscal Quarter or (b) the Letter of Credit Fee Calculation Amount established pursuant to the immediately following sentence, if applicable. If any financial statements or Compliance Certificates referred to above are not delivered within the time periods specified above, then, until such financial statements are delivered, the Letter of Credit Fee as at the end of the fiscal period that would have been covered thereby shall for the purposes of this definition be deemed to be 1.35% of the Fee Calculation Amount. Each determination of the Funded Debt Ratio pursuant to this section shall be made with respect to the period of four consecutive Fiscal Quarters of the Borrower ending at the end of the period covered by the relevant financial statements. The Letter of Credit Fee shall be payable in annual installments in advance on each anniversary of the Date of Issuance until the Expiration Date of such Letter Credit; provided, however, that upon the Date of Issuance of the Letter of Credit, Company shall pay an installment of the Letter of Credit Fee for the period from the Date of Issuance to and including the day before the anniversary of the Date of Issuance in 20072003. The “"Fee Calculation Amount” " shall be the sum of (i) the maximum amount then available to be drawn under the Letter of Credit with respect to the Principal Commitment plus (ii) the maximum amount then available to be drawn under the Letter of Credit with respect to the Interest Commitment. If the Letter of Credit is terminated prior to the Expiration Date, the Letter of Credit Fee shall be refunded to Company for any calendar quarter that the Letter of Credit will not be outstanding provided that Company returns or causes the return of the Letter of Credit to Bank prior to the start of such calendar quarter.;
(c) Company shall pay to Bank all reasonable legal, documentation, search and recording fees, and construction monitoring costs associated with closing and funding this transaction;
(d) If any change in any law or regulation or in the interpretation thereof by any court or administrative or governmental authorities charged with the administration thereof shall impose, modify or deem applicable any reserve, special deposit or similar requirement which would impose on Bank any reasonable additional costs (i) generally upon the issuance or maintenance of letters of credit by Bank; (ii) specifically in respect of this Reimbursement Agreement or the Letter of Credit; or (iii) in respect of any capital adequacy requirement (including, without limitation, a requirement which affects the manner in which Bank allocates capital resources to its commitments), and the result of such imposition of additional costs as described in clause (i), (ii), or (iii) above shall be to increase the cost to Bank of issuing or maintaining the Letter of Credit (which increase in cost shall be the result of Bank’s 's reasonable allocation of the aggregate of such cost increases resulting from such events), then (x) within thirty (30) days of Bank’s 's obtaining knowledge of such change in law, regulations or interpretation thereof, Bank shall so notify Company, and (y) upon receipt of such notice from Bank, accompanied by a certificate as to such increased cost, Company shall pay as of the effective date of such change or interpretation all reasonable additional amounts which are necessary to compensate Bank for such increased cost incurred by Bank. The certificate of Bank as to such increased costs shall show the manner of calculation and shall be conclusive (absent manifest error) as to the amount thereof; and
(e) Company’s 's obligations to make payments to Bank under this Section 2 shall be deemed satisfied to the extent of payments made by the Trustee to Bank from funds on deposit with and held by the Trustee pursuant to the Indenture.
Appears in 1 contract
Fees and Reimbursement. for Letter of Credit -------------------------------------------
(a) Company The Borrower hereby agrees to pay to the Bank:
(i) Before 2:00 p.m., Albany, New York time, on each date that any amount is drawn under the Letter of Credit pursuant to a Principal Drawing or an Interest Drawing and/or a Remarketing Drawing, Company shall pay each as defined in the Letter of Credit, a sum equal to the amount so drawn under the Letter of Credit Credit, plus (x) interest accrued, if any, on the amount so drawn under the Letter of Credit as determined by pursuant to clause (iviii) of this subsection (a) of this Section 2.2, plus (y) any and all charges and expenses which the Bank may pay or incur relative to such drawing under the Letter of Credit, plus (z) a fee in the amount of Two Hundred Dollars ($200.00200) for that drawing each Principal Drawing, Remarketing Drawing, or Interest Drawing under the Letter of Credit;.
(ii) Upon a Remarketing Drawing under the Letter of Credit, provided there is then no uncured Event of Default, Company the Borrower shall have until the Expiration Date to reimburse the Bank for the amount of the Remarketing Drawing, subject to the right of the Bank to require redemption or acceleration of the Notes pursuant to Section 7.2 8.2 hereof. Any amounts received by the Bank from the remarketing of Notes purchased out of a Remarketing Drawing and registered to the Bank or, at the direction of the Bank, to Companythe Borrower, shall be applied pro rata against Company’s the Borrower's obligation to reimburse the Bank for the amount of the Remarketing Drawing. The amount of any unreimbursed Remarketing Drawing shall bear interest from the date of the Remarketing Drawing at a rate per annum equal to the Prime Rate plus one percent (1.0%)Rate. Such interest shall be payable on each Interest Payment Date for so long as such Remarketing Drawing or any portion thereof is unreimbursed. The payments of interest hereunder shall be credited pro rata against the interest accrued on the Notes pledged to the Bank under the Note PledgePledge Agreement. Interest hereunder shall be calculated based on a 360-day year year, but calculated for on the actual number of actual days elapsed;.
(iii) Upon each transfer of the Letter of Credit in accordance with its terms and as a condition thereto, a transfer fee of Five Hundred Dollars ($500.00) and such additional amounts as shall be reasonably necessary to cover the reasonable costs and expenses to the Bank incurred in connection with such transfer;
(iv) Company The Borrower shall pay interest at the Default Rate, payable on demand, demand on any and all amounts of any Principal Drawing, Interest Drawing and/or Remarketing Drawing not paid by Company the Borrower when due under any section of this Reimbursement Agreement from the date such amounts become due until payment in full;.
(v) For any payment of principal and/or interest not paid within ten (10) Business Days after such payment is days when due, Company the Borrower shall pay a late charge of an amount equal to the greater of fifty dollars ($50) or five percent (5%) of the amount of the payment or $50.00;payment.
(vi) On The Borrower shall pay on demand, reasonable costs, fees and expenses incurred by the Bank in connection with the issuance or sale of the Notes or issuance of the Letter of Credit or the preparation or execution of any documents or opinions related thereto;.
(vii) On The Borrower shall pay on demand, any and all reasonable expenses incurred by the Bank in enforcing any of its rights under this Reimbursement Agreement, or any of the Credit Documents;
(viii) On or prior to the Closing Date, any and all appraisal fees relating the Borrower shall pay an origination fee equal to the appraisal greater of (A) seventy- five hundredths of one percent (0.75%) of the Premisesprincipal amount of the Notes, issued on such date, or (B) $82,500; and
(ix) On or prior to the Closing Date, a one-time origination fee in the amount Borrower shall pay any and all appraisal fees relating to appraisal of $5,134.00all or any portion of the Premises.
(b) Company The Borrower hereby agrees to pay to the Bank commissions a fee (whether individually or collectively, the “"Letter of Credit Fee”") in an amount equal to an amount calculated at the percentage rate of the maximum respective “Fee Calculation Amount” Rate (as hereinafter defined, available on each date of payment of ) multiplied by the Letter of Credit Fee, as set forth in the following table based upon the Company’s Funded Debt Ratio on a rolling 12 month/four fiscal quarter period as reflected in the financial information for each of the immediately preceding four fiscal quarters of the Company (: I >1.5 to 2.00 1.35% II >1.0 to 1.0 <1.5 to 1.0 1.00% III <1.0 to 1.0 .75% From the Closing Date until receipt of the audited financial statements for the Company for Fiscal Year end 2006 and Fiscal Quarter ended February 29, 2008 the annual Letter of Credit Fee shall be set at “Level III” as described in the above table. Changes in the Annual Letter of Credit Fee resulting from changes in the Funded Debt Ratio shall become effective on the date (the “Adjustment Date”) on which quarterly financial statements delivered to the Bank pursuant to Section 6.1, hereof, (but in any event not later than the 45th day after the end of the Fiscal Quarters of the Borrower ending on February 28, May 31, August 30 and the ninetieth day after the end of the Fiscal Quarter of the Borrower ending on November 30) beginning with respect to changes in the Funded Debt Ratio with the first Fiscal Quarter of the Borrower for which statements/reports are provided or delivered after the Closing Date, whether or not such Fiscal Quarter ended on, before or after, the Closing Date, and shall remain in effect until the next change to be effected pursuant to this paragraph. The period from an Adjustment Date until the day immediately preceding the next following Adjustment Date is referred to herein as the “Fee Calculation Amount Period”. The Applicable Letter (as hereinafter defined) multiplied by one or any portion of Credit Fee a year for any given Fee Calculation Amount Period shall be reduced from the Applicable Letter of Credit Fee in effect for the immediately preceding Fee Calculation Amount Period if any only if as of the immediately preceding May 31 and November 30 the Covenant Compliance Certificates prepared and submitted by the Company to the Bank in accordance with Section 6.1, hereof evidence that as of the date of such certificate(s) the Borrower was in compliance with the covenants set forth in section6.1, hereof. If the Covenant Compliance Certificate delivered by the Company to the Bank for the fiscal quarter ended May 31 and November 30, evidence that and/or the Company as of May 31 and November 30 failed to comply with the Financial Covenants, then the Applicable Letter of Credit Fee shall be the greater of (i) the Annual Letter of Credit Fee in effect on the date immediately preceding the applicable Adjustment Date and (ii) which the Letter of Credit Fee Calculation Amount applicable to the Company based is paid (using a 360-day year but calculated on the greater number of (a) its Funded Debt Ratio for the most recently completed Fiscal Quarter or (b) the Letter of Credit Fee Calculation Amount established pursuant to the immediately following sentence, if applicable. If any financial statements or Compliance Certificates referred to above are not delivered within the time periods specified above, then, until such financial statements are delivered, the Letter of Credit Fee as at the end of the fiscal period that would have been covered thereby shall for the purposes of this definition be deemed to be 1.35% of the Fee Calculation Amount. Each determination of the Funded Debt Ratio pursuant to this section shall be made with respect to the period of four consecutive Fiscal Quarters of the Borrower ending at the end of the period covered by the relevant financial statementsactual days elapsed). The Letter of Credit Fee shall be payable in annual installments in advance on March 31 (the "Fee Payment Date") of each anniversary of the Date of Issuance year until the Expiration Date or the date of such earlier termination of the Letter of Credit; provided, however, that upon the Date of Issuance of Issuance, the Letter of Credit, Company Borrower shall pay an installment of the Letter of Credit Fee for the period from the Date of Issuance to and including the day before prior to the anniversary of the Fee Payment Date of Issuance in 20072001. The “"Fee Calculation Amount” " shall be the sum of (i) the maximum amount then available on each date of payment of the Letter of Credit Fee to be drawn under the Letter of Credit with respect to the Principal Commitment plus (ii) the maximum amount then available on each date of payment of the Letter of Credit Fee to be drawn under the Letter of Credit with respect to the Interest Commitment. On the Date of Issuance, the "Fee Calculation Rate" shall be two percent (2.00%) per annum. On each Fee Payment Date after the Date of Issuance, the "Fee Calculation Rate" shall be the rate per annum, set forth below, for certain ratios of Total Funded Debt to EBITDA, set forth below:
(i) If the Letter ratio of Credit Total Funded Debt to EBITDA for the prior fiscal year of the Borrower is terminated prior less than 2.5 to 1.0, then the Expiration Date, the Letter of Credit Fee Calculation Rate shall be refunded one percent (1.00%) per annum;
(ii) If the ratio of Total Funded Debt to Company EBITDA for any calendar quarter that the Letter of Credit will not be outstanding provided that Company returns or causes the return prior fiscal year of the Letter Borrower is less than (A) 3.75 for the fiscal year ending December 31, 2000, or (B) 3.5 for the fiscal year ending December 31, 2001 and each fiscal year thereafter, to 1.0 but greater than or equal to 2.5 to 1.0, then the Fee Calculation Rate shall be one and five tenths percent (1.5%) per annum; and
(iii) If the ratio of Credit Total Funded Debt to Bank EBITDA for the prior fiscal year of the Borrower is equal to or greater than (A) 3.75 for the start of such calendar quarterfiscal year ending December 31, 2000, or (B) 3.5 for the fiscal year ending December 31, 2001 and each fiscal year thereafter, to 1.0, then the Fee Calculation Rate shall be two percent (2.00%) per annum.
(c) Company shall pay to Bank all reasonable legal, documentation, search and recording fees, and construction monitoring costs associated with closing and funding this transaction;
(d) If any change in any law or regulation or in the interpretation thereof by any court or administrative or governmental authorities authority charged with the administration thereof shall impose, modify or deem applicable any reserve, special deposit or similar requirement which would impose on Bank any reasonable additional increase or decrease the Bank's costs (i) generally upon the issuance or maintenance of letters of credit by the Bank; , (ii) specifically in respect of this Reimbursement Agreement or the Letter of Credit; , or (iii) in respect of any capital adequacy requirement (including, without limitation, a requirement which affects the manner in which the Bank allocates capital resources to its commitments), and the result of such imposition of additional an increase or decrease in costs as described in clause (i), (ii), or (iii) above shall be to increase or decrease the cost costs to the Bank of issuing or maintaining the Letter of Credit (which increase or decrease in cost costs shall be the result of the Bank’s 's reasonable allocation allocation, of the aggregate of such cost increases or decreases resulting from such events), then then, (x) within thirty (30) days of the Bank’s 's obtaining knowledge of such change in law, regulations or interpretation thereof, the Bank shall so notify Company, the Borrower and (y) upon receipt of such notice from the Bank, accompanied by a certificate as to such increased or decreased cost, Company the Borrower shall pay or receive a refund of, as of the effective date of such change or interpretation interpretation, all reasonable additional amounts which are necessary to compensate the Bank or the Borrower for such increased or decreased cost incurred by the Bank. The certificate of Bank as to such increased costs shall show the manner of calculation and shall be conclusive (absent manifest error) as to the amount thereof; and.
(ed) Company’s The Borrower's obligations to make payments to the Bank under this Section 2 2.2 shall be deemed satisfied to the extent of payments made by the Trustee to the Bank from funds on deposit with and held by the Trustee pursuant to the Indenture.
Appears in 1 contract
Fees and Reimbursement. (a) Company The Borrower hereby agrees to pay to the Bank:
(i) Before 2:00 p.m., New York Seattle time, on each the date that of any amount is drawn Principal Drawing or Interest Drawing under the Letter of Credit pursuant to a Principal Drawing or an Interest DrawingCredit, Company shall pay a sum equal to the amount so drawn under the Letter of Credit plus (xa) interest accrued, if any, accrued from the date of any such Principal Drawing or Interest Drawing on the amount so drawn under the Letter of Credit as determined by clause at the Default Rate pursuant to subsection (iv) of this subsection (a) of this Section 2.2Section2.2(a), plus (yb) any and all charges and expenses which the Bank may pay or incur relative to such drawing under the Letter of Credit, plus (zc) a fee in the amount of Two Hundred Dollars ($200.00) for that drawing under the Letter of Credit;.
(ii) Upon a Remarketing Drawing under the Letter of Credit, provided there is then no uncured Event of Default, Company the Borrower shall have until the Expiration Date to reimburse the Bank for the amount of the Remarketing Drawing, subject to the right of the Bank to require redemption of the Notes Bonds pursuant to Section 7.2 Section7.2 hereof. Any amounts received by the Bank from the remarketing of Notes Bonds purchased out of a Remarketing Drawing and registered to the Bank or, at the direction of the Bank, to Companythe Borrower, shall be applied pro rata against Company’s the Borrower's obligation to reimburse the Bank for the amount of the Remarketing Drawing. The amount of any unreimbursed Remarketing Drawing shall bear interest from the date of the Remarketing Drawing at a rate per annum equal to the Prime Federal Funds Rate plus one percent hundred fifty basis points (1.01.50%). Such interest shall be payable on each Interest Payment Date for so long as such Remarketing Drawing or any portion thereof is unreimbursed. The payments of interest hereunder shall be credited pro rata against the interest accrued on the Notes Bonds pledged to the Bank under the Note PledgeBond Pledge Agreement. Interest hereunder shall be calculated based on a 360-360 day year but calculated for the actual number of days elapsed;.
(iii) Upon each transfer of the Letter of Credit in accordance with its terms and as a condition thereto, a transfer fee of Five Hundred Dollars ($500.00) and sum in such additional amounts amount as shall be necessary to cover the reasonable costs and expenses to the Bank incurred in connection with such transfer;
(iv) Company shall pay interest Interest at the Default Rate, payable on demand, on any and all amounts of any Principal Drawing, Interest Drawing and/or Remarketing Drawing not paid by Company the Borrower when due under any section of this Reimbursement Agreement from the date such amounts become due until payment in full;
(v) For any payment of principal and/or interest not paid within ten (10) Business Days days after such payment is due, Company shall pay a late charge of an amount equal to the greater of five percent (5%) of the amount of the payment or $50.00;50.
(vi) On demand, reasonable costs, fees and expenses incurred by the Bank in connection with the issuance of the Letter of Credit or the preparation or execution of any documents or opinions related thereto;
(vii) On demand, any and all reasonable expenses incurred by the Bank in enforcing any of its rights under this Reimbursement Agreement, or any of the Credit Documents;
(viii) On or prior to the Closing Date, any and all appraisal fees relating to the appraisal of the Premises; and
(ixviii) On or prior to Closing Date, a one-time origination fee in the amount of three fourths of one percent (0.75%) of the original principal amount of the Bonds ($5,134.0051,375).
(b) Company The Borrower hereby agrees to pay to the Bank commissions a commission (whether individually or collectively, the “"Letter of Credit Fee”") equal to an amount calculated at the percentage rate of one percent (1.00%) per annum (using a 360-day year but calculated on the number of actual days elapsed) of the maximum respective “"Fee Calculation Amount” " as hereinafter defined, available on each date of payment of the Letter of Credit Fee, as set forth in the following table based upon the Company’s Funded Debt Ratio on a rolling 12 month/four fiscal quarter period as reflected in the financial information for each of the immediately preceding four fiscal quarters of the Company (: I >1.5 to 2.00 1.35% II >1.0 to 1.0 <1.5 to 1.0 1.00% III <1.0 to 1.0 .75% From the Closing Date until receipt of the audited financial statements for the Company for Fiscal Year end 2006 and Fiscal Quarter ended February 29, 2008 the annual Letter of Credit Fee shall be set at “Level III” as described in the above table. Changes in the Annual Letter of Credit Fee resulting from changes in the Funded Debt Ratio shall become effective on the date (the “Adjustment Date”) on which quarterly financial statements delivered to the Bank pursuant to Section 6.1, hereof, (but in any event not later than the 45th day after the end of the Fiscal Quarters of the Borrower ending on February 28, May 31, August 30 and the ninetieth day after the end of the Fiscal Quarter of the Borrower ending on November 30) beginning with respect to changes in the Funded Debt Ratio with the first Fiscal Quarter of the Borrower for which statements/reports are provided or delivered after the Closing Date, whether or not such Fiscal Quarter ended on, before or after, the Closing Date, and shall remain in effect until the next change to be effected pursuant to this paragraph. The period from an Adjustment Date until the day immediately preceding the next following Adjustment Date is referred to herein as the “Fee Calculation Amount Period”. The Applicable Letter of Credit Fee for any given Fee Calculation Amount Period shall be reduced from the Applicable Letter of Credit Fee in effect for the immediately preceding Fee Calculation Amount Period if any only if as of the immediately preceding May 31 and November 30 the Covenant Compliance Certificates prepared and submitted by the Company to the Bank in accordance with Section 6.1, hereof evidence that as of the date of such certificate(s) the Borrower was in compliance with the covenants set forth in section6.1, hereof. If the Covenant Compliance Certificate delivered by the Company to the Bank for the fiscal quarter ended May 31 and November 30, evidence that and/or the Company as of May 31 and November 30 failed to comply with the Financial Covenants, then the Applicable Letter of Credit Fee shall be the greater of (i) the Annual Letter of Credit Fee in effect on the date immediately preceding the applicable Adjustment Date and (ii) the Letter of Credit Fee Calculation Amount applicable to the Company based on the greater of (a) its Funded Debt Ratio for the most recently completed Fiscal Quarter or (b) the Letter of Credit Fee Calculation Amount established pursuant to the immediately following sentence, if applicable. If any financial statements or Compliance Certificates referred to above are not delivered within the time periods specified above, then, until such financial statements are delivered, the Letter of Credit Fee as at the end of the fiscal period that would have been covered thereby shall for the purposes of this definition be deemed to be 1.35% of the Fee Calculation Amount. Each determination of the Funded Debt Ratio pursuant to this section shall be made with respect to the period of four consecutive Fiscal Quarters of the Borrower ending at the end of the period covered by the relevant financial statements. The Letter of Credit Fee shall be payable in annual installments in advance on each anniversary of the Date of Issuance in each year until the Expiration Date of such the Letter of Credit; provided, however, that upon the Date of Issuance of the Letter of Credit, Company the Borrower shall pay an installment of the Letter of Credit Fee for the period from the Date of Issuance to and including the day before the anniversary of the Date of Issuance in 20071999. The “"Fee Calculation Amount” " shall be the sum of (i) the maximum amount then available to be drawn under the Letter of Credit with respect to the Principal Commitment plus plus, (ii) the maximum amount then available to be drawn under the Letter of Credit with respect to the Interest Commitment. If the Letter of Credit is terminated prior to the Expiration Date, the Letter of Credit Fee shall be refunded to Company the Borrower for any calendar quarter that the Letter of Credit will not be outstanding provided that Company the Borrower returns or causes the return of the Letter of Credit to the Bank prior to the start of such calendar quarter.
(c) Company The Borrower shall pay to the Bank all reasonable legal, documentation, search and recording fees, and construction monitoring costs associated with closing and funding this transaction;.
(d) If any change in any law or regulation or in the interpretation thereof by any court or administrative or governmental authorities charged with the administration thereof shall impose, modify or deem applicable any reserve, special deposit or similar requirement which would impose on the Bank any reasonable additional costs (i) generally upon the issuance or maintenance of letters of credit by the Bank; (ii) specifically in respect of this Reimbursement Agreement or the Letter of Credit; or (iii) in respect of any capital adequacy requirement (including, without limitation, a requirement which affects the manner in which the Bank allocates capital resources to its commitments), and the result of such imposition of additional costs as described in clause (i), (ii), or (iii) above shall be to increase the cost to the Bank of issuing or maintaining the Letter of Credit (which increase in cost shall be the result of the Bank’s 's reasonable allocation of the aggregate of such cost increases resulting from such events), then (x) within thirty (30) days of the Bank’s 's obtaining knowledge of such change in law, regulations or interpretation thereof, the Bank shall so notify Companythe Borrower, and (y) upon receipt of such notice from the Bank, accompanied by a certificate as to such increased cost, Company the Borrower shall pay as of the effective date of such change or interpretation all reasonable additional amounts which are necessary to compensate the Bank for such increased cost incurred by the Bank. The certificate of Bank as to such increased costs shall show the manner of calculation and shall be conclusive (absent manifest error) as to the amount thereof; and.
(e) Company’s The Borrower's obligations to make payments to the Bank under this Section 2 2.2 shall be deemed satisfied to the extent of payments made by the Trustee to the Bank from funds on deposit with and held by the Trustee pursuant to the Indenture.
Appears in 1 contract
Fees and Reimbursement. (a) Company A. The Borrower hereby agrees to pay to the Bank:
(i) 1. Before 2:00 p.m., New York time, on each date that any amount is drawn under the Letter of Credit pursuant to a Principal Drawing or an Interest Drawing; and before 2:00 p.m., Company shall pay New York time on or before the second (2nd) Business Day after the date that any amount is drawn under the Letter of Credit pursuant to a Bond Purchase Drawing a sum equal to the amount so drawn under the Letter of Credit plus (x) interest accruedaccrued from the date of any such Principal Drawing, Interest Drawing, or Bond Purchase Drawing, if any, on the amount so drawn under the Letter of Credit as determined by pursuant to clause (iv3) of this subsection (aA) of this Section 2.2, plus (y) any and all charges and expenses which the Bank may pay or incur relative to such drawing under the Letter of Credit, plus (z) a fee in the amount of Two Hundred Dollars ($200.00) for that drawing under the Letter of Credit;
(ii) Upon a Remarketing Drawing under the Letter of Credit, provided there is then no uncured Event of Default, Company shall have until the Expiration Date to reimburse Bank for the amount of the Remarketing Drawing, subject to the right of Bank to require redemption of the Notes pursuant to Section 7.2 hereof2. Any amounts received by Bank from the remarketing of Notes purchased out of a Remarketing Drawing and registered to Bank or, at the direction of Bank, to Company, shall be applied pro rata against Company’s obligation to reimburse Bank for the amount of the Remarketing Drawing. The amount of any unreimbursed Remarketing Drawing shall bear interest from the date of the Remarketing Drawing at a rate per annum equal to the Prime Rate plus one percent (1.0%). Such interest shall be payable on each Interest Payment Date for so long as such Remarketing Drawing or any portion thereof is unreimbursed. The payments of interest hereunder shall be credited pro rata against the interest accrued on the Notes pledged to Bank under the Note Pledge. Interest hereunder shall be calculated based on a 360-day year but calculated for the actual number of days elapsed;
(iii) Upon each transfer of the Letter of Credit in accordance with its terms and as a condition thereto, a transfer fee of Five Hundred Dollars ($500.00) and sum in such additional amounts amount as shall be necessary to cover the reasonable costs and expenses to the Bank incurred in connection with such transfer;
(iv) Company shall pay interest at the Default Rate3. Interest, payable on demand, on any and all amounts of any Principal Drawing, Interest Drawing and/or Remarketing Bond Purchase Drawing not paid by Company the Borrower when due under any section of this Reimbursement Agreement from the date such amounts become due until payment in full, such interest at a rate per annum equal to (i) prior to the occurrence of an Event of Default, the Bank's Prime Rate, (ii) upon the occurrence of an Event of Default and during the continuance thereof, the Bank's Prime Rate plus four percent (4%);
(v) For any payment of principal and/or interest not paid within ten (10) Business Days after such payment is due, Company shall pay a late charge of an amount equal to the greater of five percent (5%) of the amount of the payment or $50.00;
(vi) 4. On demand, reasonable costs, fees and expenses incurred by Bank the Bank, including reasonable attorneys fees, in connection with the issuance of the Letter of Credit or the preparation or execution of any documents or opinions related thereto;
(vii) 5. On demand, any and all reasonable expenses incurred by Bank the Bank, including reasonable attorneys fees, in enforcing any of its rights under this Reimbursement Agreement, or any of the Credit Bank Documents;; and
(viii) 6. On or prior to the Closing Dateclosing, any and all appraisal fees relating to the appraisal of the Premises; andreal property subject to the Mortgage and the Collateral Mortgage.
(ix) 7. On or prior to the Closing Date, a one-time origination fee in the amount of equal to $5,134.0038,400.
(b) Company B. The Borrower hereby agrees to pay to Bank commissions on the date of issuance of the Letter of Credit and on each annual anniversary of that date, a fee (whether individually or collectively, the “"Letter of Credit Fee”") equal to an amount calculated at the percentage rate of the maximum respective “Fee Calculation Amount” as hereinafter defined, available on each date of payment of the Letter of Credit Fee, as set forth in the following table based upon the Company’s Funded Debt Ratio on a rolling 12 month/four fiscal quarter period as reflected in the financial information for each of the immediately preceding four fiscal quarters of the Company (: I >1.5 to 2.00 1.35% II >1.0 to 1.0 <1.5 to 1.0 1.00% III <1.0 to 1.0 .75% From the Closing Date until receipt of the audited financial statements for the Company for Fiscal Year end 2006 and Fiscal Quarter ended February 29, 2008 the annual Letter of Credit Fee shall be set at “Level III” as described in the above table. Changes in the Annual Letter of Credit Fee resulting from changes in the Funded Debt Ratio shall become effective on the date (the “Adjustment Date”) on which quarterly financial statements delivered to the Bank pursuant to Section 6.1, hereof, (but in any event not later than the 45th day after the end of the Fiscal Quarters of the Borrower ending on February 28, May 31, August 30 and the ninetieth day after the end of the Fiscal Quarter of the Borrower ending on November 30) beginning with respect to changes in the Funded Debt Ratio with the first Fiscal Quarter of the Borrower for which statements/reports are provided or delivered after the Closing Date, whether or not such Fiscal Quarter ended on, before or after, the Closing Date, and shall remain in effect until the next change to be effected pursuant to this paragraph. The period from an Adjustment Date until the day immediately preceding the next following Adjustment Date is referred to herein as the “Fee Calculation Amount Period”. The Applicable Letter of Credit Fee for any given Fee Calculation Amount Period shall be reduced from the Applicable Letter of Credit Fee in effect for the immediately preceding Fee Calculation Amount Period if any only if as of the immediately preceding May 31 and November 30 the Covenant Compliance Certificates prepared and submitted by the Company to the Bank in accordance with Section 6.1, hereof evidence that as of the date of such certificate(s) the Borrower was in compliance with the covenants set forth in section6.1, hereof. If the Covenant Compliance Certificate delivered by the Company to the Bank for the fiscal quarter ended May 31 and November 30, evidence that and/or the Company as of May 31 and November 30 failed to comply with the Financial Covenants, then the Applicable Letter of Credit Fee shall be the greater of (i) the Annual Letter of Credit Fee in effect on the date immediately preceding the applicable Adjustment Date and (ii) the Letter of Credit Fee Calculation Amount applicable to the Company based on the greater of (a) its Funded Debt Ratio for the most recently completed Fiscal Quarter or (b) the Letter of Credit Fee Calculation Amount established pursuant to the immediately following sentence, if applicable. If any financial statements or Compliance Certificates referred to above are not delivered within the time periods specified above, then, until such financial statements are delivered, the Letter of Credit Fee as at the end of the fiscal period that would have been covered thereby shall for the purposes of this definition be deemed to be 1.35% of the Fee Calculation Amount. Each determination of the Funded Debt Ratio pursuant to this section shall be made with respect to the period of four consecutive Fiscal Quarters of the Borrower ending at the end of the period covered by the relevant financial statements. The Letter of Credit Fee shall be payable in annual installments in advance on each anniversary of the Date of Issuance until the Expiration Date of such Letter Credit; provided, however, that upon the Date of Issuance of the Letter of Credit, Company shall pay an installment of the Letter of Credit Fee for the period from the Date of Issuance to and including the day before the anniversary of the Date of Issuance in 2007. The “Fee Calculation Amount” shall be multiplying the sum of (i) the maximum amount then available to be drawn under the Letter of Credit with respect to a Principal Drawing on the Principal Commitment plus date of calculation and (ii) the maximum amount then available to be drawn under the Letter of Credit with respect to Interest Drawings on the Interest Commitment. If the Letter date of Credit is terminated prior to the Expiration Datecalculation, the Letter of Credit Fee shall be refunded to Company for any calendar quarter that the Letter of Credit will not be outstanding provided that Company returns or causes the return of the Letter of Credit to Bank prior to the start of such calendar quarterby one percent (1.0%) per annum.
(c) Company C. The Borrower shall pay to the Bank all reasonable legal, documentation, search and recording fees, documentation and construction monitoring costs associated with closing and funding this transaction;.
(d) D. If any change in any law or regulation or in the interpretation thereof by any court or administrative or governmental authorities charged with the administration thereof shall impose, modify or deem applicable any reserve, special deposit or similar requirement which would impose on the Bank any reasonable additional costs (i) generally upon the issuance or maintenance of letters of credit by the Bank; , (ii) specifically in respect of this Reimbursement Agreement or the Letter of Credit; , or (iii) in respect of any capital adequacy requirement (including, without limitation, a requirement which affects the manner in which the Bank allocates capital resources to its commitments), and the result of such imposition of additional costs as described in clause (i), (ii), or (iii) above shall be to increase the cost to the Bank of issuing or maintaining the Letter of Credit (which increase in cost shall be the result of the Bank’s 's reasonable allocation of the aggregate of such cost increases resulting from such events), then then, (x) within thirty (30) days of the Bank’s 's obtaining knowledge of such change in law, regulations or interpretation thereof, the Bank shall so notify Company, the Borrower and (y) upon receipt of such notice from the Bank, accompanied by a certificate as to such increased cost, Company the Borrower shall pay as of the effective date of such change or interpretation all reasonable additional amounts which are necessary to compensate the Bank for such increased cost incurred by the Bank. The certificate of the Bank as to such increased costs shall show the manner of calculation and shall be conclusive (absent manifest error) as to the amount thereof; and.
(e) Company’s E. The Borrower's obligations to make payments to the Bank under this Section 2 2.2 shall be deemed satisfied to the extent of payments made by the Trustee to the Bank from funds on deposit with and held by the Trustee pursuant to the Indenture.
F. All payments by the Borrower to the Bank hereunder shall be made in lawful currency of the United States and in immediately available funds at the Bank's principal office, currently at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000.
Appears in 1 contract
Samples: Letter of Credit Reimbursement Agreement (Spurlock Industries Inc)
