Common use of Increases and Decreases of Applicable Rates Clause in Contracts

Increases and Decreases of Applicable Rates. Any increase or decrease in any Applicable Rate resulting from a change in the Consolidated Leverage Ratio will become effective as of the date that is the earlier of (i) the last date by which the Borrowers are otherwise required to deliver a Compliance Certificate in accordance with Section 6.01(c) for given period (each such date, a “calculation date”) and (ii) the date that is two Business Days after the date on which the Administrative Borrower, on behalf of the Borrowers, actually delivers a Compliance Certificate in accordance with Section 6.01(c) for a given period. Notwithstanding the foregoing, the Applicable Rates in effect from the Closing Date to the date that is two Business Days following receipt by Administrative Agent of a timely delivered Compliance Certificate with respect to the Fiscal Period ending June 30, 2014 (the “Initial Applicable Rates”) shall be based on the Tier IV as indicated on the grid set forth in the definition of “Applicable Rate”. If any Compliance Certificate required to be delivered in accordance with Section 6.01(c) is not delivered to Administrative Agent on or before the related calculation date, then the levels corresponding to Tier 1 as indicated on the grid set forth in the definition of “Applicable Rate” will apply, effective on the related calculation date until two Business Days after such Compliance Certificate is actually received by Administrative Agent. Notwithstanding the foregoing and for the avoidance of doubt, if, for any period and for any reason, the actual Consolidated Leverage Ratio, as determined by Administrative Borrower in good faith and consented to by the Administrative Agent (such consent not to be unreasonably withheld), is higher than that reported in the related Compliance Certificate delivered for such period, then the Borrowers will immediately, without the requirement of notice or demand from any Person, pay to Lending Parties an amount equal to the excess of (A) the amount of interest or fees that would have accrued had the Applicable Rates for such period been based upon the actual Consolidated Leverage Ratio for such period rather than the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period over (B) the amount of interest or fees that was actually paid by the Borrowers based upon the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period. The foregoing will in no way limit the rights of Administrative Agent to impose the Default Rate of interest pursuant to Section 2.09(b) or to exercise any other remedy available at law or as provided hereunder or under any of the other Loan Documents.

Increases and Decreases of Applicable Rates. Any increase or decrease in any Applicable Rate resulting from a change in the Consolidated Leverage Ratio will become effective as of the date that is the earlier of (i) the last date by which the Borrowers are otherwise required to deliver a Compliance Certificate in accordance with Section 6.01(c) for given period (each such date, a “calculation date”) and (ii) the date that is two Business Days after the date on which the Administrative Borrower, on behalf of the Borrowers, actually delivers a Compliance Certificate in accordance with Section 6.01(c) for a given period. Notwithstanding the foregoing, the Applicable Rates in effect from the Closing Fourth Amendment Effective Date to the date that is two Business Days following receipt by Administrative Agent of a timely delivered Compliance Certificate with respect to the Fiscal Period ending June 30March 31, 2014 2017 (the “Initial Applicable Rates”) shall be based on the Tier IV III as indicated on the grid set forth in the definition of “Applicable Rate”. If any Compliance Certificate required to be delivered in accordance with Section 6.01(c) is not delivered to Administrative Agent on or before the related calculation date, then the levels corresponding to Tier 1 I as indicated on the grid set forth in the definition of “Applicable Rate” will apply, effective on the related calculation date until two Business Days after such Compliance Certificate is actually received by Administrative Agent. Notwithstanding the foregoing and for the avoidance of doubt, if, for any period and for any reason, the actual Consolidated Leverage Ratio, as determined by Administrative Borrower in good faith and consented to by the Administrative Agent (such consent not to be unreasonably withheld), is higher than that reported in the related Compliance Certificate delivered for such period, then the Borrowers will immediately, without the requirement of notice or demand from any Person, pay to Lending Parties an amount equal to the excess of (A) the amount of interest or fees that would have accrued had the Applicable Rates for such period been based upon the actual Consolidated Leverage Ratio for such period rather than the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period over (B) the amount of interest or fees that was actually paid by the Borrowers based upon the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period. The foregoing will in no way limit the rights of Administrative Agent to impose the Default Rate of interest pursuant to Section 2.09(b) or to exercise any other remedy available at law or as provided hereunder or under any of the other Loan Documents.

Increases and Decreases of Applicable Rates. Any increase or decrease in any Applicable Rate resulting from a change in the Consolidated Leverage Ratio will shall become effective as of the date that is the earlier of of: (i) the last date by which the Borrowers are Borrower is otherwise required to deliver a Compliance Certificate in accordance with Section 6.01(c6.02(b) with reference to Section 6.01 for a given period (each such date, a “calculation date”) ); and (ii) the date that is two Business Days after the date on which the Administrative Borrower, on behalf of the Borrowers, Borrower actually delivers a Compliance Certificate in accordance with Section 6.01(c6.02(b) with reference to Section 6.01 for a given such period. Notwithstanding the foregoing, ; provided that the Applicable Rates in effect from the Closing Date to the date that is two Business Days following receipt by Administrative Agent of a timely delivered Compliance Certificate with respect to the Fiscal Period ending June ended April 30, 2014 (the “Initial Applicable Rates”) 2012 shall be based on the set at Tier IV III (as indicated on the grid set forth in the definition of “Applicable Rate”. If Schedule 1.01-A); provided further that, if any Compliance Certificate required to be delivered in accordance with Section 6.01(c6.02(b) with reference to Section 6.01 for any given period is not delivered to Administrative Agent on or before the related calculation date, then the levels corresponding to Tier 1 (as indicated on the grid set forth in the definition of “Applicable Rate” will Schedule 1.01-A) shall apply, effective on the related calculation date until two Business Days after such Compliance Certificate is actually received by Administrative Agent. Notwithstanding the foregoing and for the avoidance of doubt, if, for any period and for any reason, the actual Consolidated Leverage Ratio, as determined by Administrative Borrower in good faith and consented to by the Administrative Agent (such consent not to be unreasonably withheld), Ratio is higher than that reported in the related Compliance Certificate delivered for such period, then the Borrowers will Borrower shall immediately, without the requirement of notice or demand from any Person, pay to Lending Parties an amount equal to the excess of of: (A) the amount of interest or fees that would have accrued had the Applicable Rates for such period been based upon the actual Consolidated Leverage Ratio for such period rather than the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period period; over (B) the amount of interest or fees that was actually paid by the Borrowers Borrower based upon the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period. The foregoing will in no way limit the rights of Administrative Agent to impose the Default Rate of interest pursuant to Section 2.09(b) or to exercise any other remedy available at law or as provided hereunder or under any of the other Loan Documents.

Increases and Decreases of Applicable Rates. Any increase or decrease in any Applicable Rate resulting from a change in the Consolidated Leverage Ratio will shall become effective as of the date that is the earlier of of: (i) the last date by which the Borrowers are Borrower is otherwise required to deliver a Compliance Certificate in accordance with Section 6.01(c6.02(b) with reference to Section 6.01 for a given period (each such date, a “calculation date”) ); and (ii) the date that is two Business Days after the date on which the Administrative Borrower, on behalf of the Borrowers, Borrower actually delivers a Compliance Certificate in accordance with Section 6.01(c6.02(b) with reference to Section 6.01 for a given such period. Notwithstanding the foregoing, ; provided that the Applicable Rates in effect from the Closing Date to the date that is two Business Days following receipt by Administrative Agent of a timely delivered Compliance Certificate with respect to the Fiscal Period ending June 30ended October 31, 2014 (the “Initial Applicable Rates”) 2010 shall be based on the set at Tier IV III (as indicated on the grid set forth in the definition of “Applicable Rate”. If Schedule 1.01-A); provided further that, if any Compliance Certificate required to be delivered in accordance with Section 6.01(c6.02(b) with reference to Section 6.01 for any given period is not delivered to Administrative Agent on or before the related calculation date, then the levels corresponding to Tier 1 (as indicated on the grid set forth in the definition of “Applicable Rate” will Schedule 1.01-A) shall apply, effective on the related calculation date until two Business Days after such Compliance Certificate is actually received by Administrative Agent. Notwithstanding the foregoing and for the avoidance of doubt, if, for any period and for any reason, the actual Consolidated Leverage Ratio, as determined by Administrative Borrower in good faith and consented to by the Administrative Agent (such consent not to be unreasonably withheld), Ratio is higher than that reported in the related Compliance Certificate delivered for such period, then the Borrowers will Borrower shall immediately, without the requirement of notice or demand from any Person, pay to Lending Parties an amount equal to the excess of of: (A) the amount of interest or fees that would have accrued had the Applicable Rates for such period been based upon the actual Consolidated Leverage Ratio for such period rather than the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period period; over (B) the amount of interest or fees that was actually paid by the Borrowers Borrower based upon the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period. The foregoing will in no way limit the rights of Administrative Agent to impose the Default Rate of interest pursuant to Section 2.09(b) or to exercise any other remedy available at law or as provided hereunder or under any of the other Loan Documents.

Increases and Decreases of Applicable Rates. Any increase or decrease in any Applicable Rate resulting from a change in the Consolidated Leverage Ratio will or Consolidated Pre-Tax Income shall become effective as of the date that is the earlier of of: (i) the last date by which the Borrowers are Borrower is otherwise required to deliver a Compliance Certificate in accordance with Section 6.01(c6.02(b) with reference to Section 6.01 for a given period (each such date, a “calculation date”) ); and (ii) the date that is two Business Days after the date on which the Administrative Borrower, on behalf of the Borrowers, Borrower actually delivers a Compliance Certificate in accordance with Section 6.01(c6.02(b) with reference to Section 6.01 for a given such period. Notwithstanding the foregoing; provided that, the Applicable Rates in effect from the Closing Date to the date that is two Business Days following receipt by Administrative Agent of a timely delivered Compliance Certificate with respect to the Fiscal Period ending June 30, 2014 (the “Initial Applicable Rates”) shall be based on the Tier IV as indicated on the grid set forth in the definition of “Applicable Rate”. If if any Compliance Certificate required to be delivered in accordance with Section 6.01(c6.02(b) with reference to Section 6.01 for any given period is not delivered to Administrative Agent on or before the related calculation date, then the levels corresponding to Tier 1 5 (as indicated on the grid set forth in the definition of “Applicable Rate” will Schedule 1.01‑A) shall apply, effective on the related calculation date until two Business Days after such Compliance Certificate is actually received by Administrative Agent. Notwithstanding the foregoing foregoing, in the event that a Compliance Certificate delivered pursuant to Section 6.02(b) is inaccurate (regardless of whether (i) this Agreement is in effect, or (ii) the Working Capital Commitments are in effect, (iii) the Floorplan Commitments are in effect or (iv) any Credit Extension is outstanding when such inaccuracy is discovered or such Compliance Certificate was delivered), and for such inaccuracy, if corrected, would have led to the avoidance application of doubt, if, a higher Applicable Rate for any period and (an “Applicable Period”) than the Applicable Rate applied for any reasonsuch Applicable Period, then (x) the actual Borrower shall immediately deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable Period, (y) the Applicable Rate for such Applicable Period shall be determined as if the Consolidated Leverage RatioRatio and Consolidated Pre-Tax Income in the corrected Compliance Certificate were applicable for such Applicable Period, and (z) the Borrower shall immediately pay to the Administrative Agent the accrued additional interest and fees owing as determined by Administrative Borrower in good faith and consented to a result of such increased Applicable Rate for such Applicable Period, which payment shall be promptly applied by the Administrative Agent (such consent not to be unreasonably withheld), is higher than that reported in the related Compliance Certificate delivered for such period, then the Borrowers will immediately, without the requirement of notice or demand from any Person, pay to Lending Parties an amount equal to the excess of (A) the amount of interest or fees that would have accrued had the Applicable Rates for such period been based upon the actual Consolidated Leverage Ratio for such period rather than the Consolidated Leverage Ratio reported accordance with Section 2.12. Nothing in the Compliance Certificate delivered for such period over (B) the amount of interest or fees that was actually paid by the Borrowers based upon the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period. The foregoing will in no way this paragraph shall limit the rights of the Administrative Agent to impose the Default Rate of interest pursuant and Lenders with respect to Section 2.09(b2.08(b) and Section 8.01, provided that payment of any amounts due under the previous sentence shall cure any Default and Event of Default resulting from any such inaccurate Compliance Certificate (but not any underlying financial covenant or to exercise any other remedy available at law or as provided hereunder or under any default). 1.1.6 Section 6.12(c) of the other Loan Documents.Credit Agreement is hereby deleted in its entirety and the following is substituted therefor:

Increases and Decreases of Applicable Rates. Any increase or decrease in any Applicable Rate resulting from a change in the Consolidated Leverage Ratio will become effective as of the date that is the earlier of (i) the last date by which the Borrowers are otherwise required to deliver a Compliance Certificate in accordance with Section 6.01(c) for given period (each such date, a “calculation date”) and (ii) the date that is two Business Days after the date on which the Administrative Borrower, on behalf of the Borrowers, actually delivers a Compliance Certificate in accordance with Section 6.01(c) for a given period. Notwithstanding the foregoing, the Applicable Rates in effect from the Closing ThirdFourth Amendment Effective Date to the date that is two Business Days following receipt by Administrative Agent of a timely delivered Compliance Certificate with respect to the Fiscal Period ending June 3030,March 31, 2014 2017 (the “Initial Applicable Rates”) shall be the greater of (a) the applicable pricing level based on the Compliance Certificate delivered in accordance with Section 6.01(c) for any applicable period or (b) Tier IV III as indicated on the grid set forth in the definition of “Applicable Rate”. If any Compliance Certificate required to be delivered in accordance with Section 6.01(c) is not delivered to Administrative Agent on or before the related calculation date, then the levels corresponding to Tier 1 1I as indicated on the grid set forth in the definition of “Applicable Rate” will apply, effective on the related calculation date until two Business Days after such Compliance Certificate is actually received by Administrative Agent. Notwithstanding the foregoing and for the avoidance of doubt, if, for any period and for any reason, the actual Consolidated Leverage Ratio, as determined by Administrative Borrower in good faith and consented to by the Administrative Agent (such consent not to be unreasonably withheld), is higher than that reported in the related Compliance Certificate delivered for such period, then the Borrowers will immediately, without the requirement of notice or demand from any Person, pay to Lending Parties an amount equal to the excess of (A) the amount of interest or fees that would have accrued had the Applicable Rates for such period been based upon the actual Consolidated Leverage Ratio for such period rather than the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period over (B) the amount of interest or fees that was actually paid by the Borrowers based upon the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period. The foregoing will in no way limit the rights of Administrative Agent to impose the Default Rate of interest pursuant to Section 2.09(b) or to exercise any other remedy available at law or as provided hereunder or under any of the other Loan Documents.

Increases and Decreases of Applicable Rates. Any increase or decrease in any Applicable Rate resulting from a change in the Consolidated Leverage Ratio will become effective as of the date that is the earlier of (i) the last date by which the Borrowers are otherwise required to deliver a Compliance Certificate in accordance with Section 6.01(c) for given period (each such date, a “calculation date”) and (ii) the date that is two Business Days after the date on which the Administrative Borrower, on behalf of the Borrowers, actually delivers a Compliance Certificate in accordance with Section 6.01(c) for a given period. Notwithstanding the foregoing, the Applicable Rates in effect from the Closing ClosingThird Amendment Effective Date to the date that is two Business Days following receipt by Administrative Agent of a timely delivered Compliance Certificate with respect to the Fiscal Period ending June 30, 2014 20142017 (the “Initial Applicable Rates”) shall be based on the Tier IV IVthe greater of (a) the applicable pricing level based on the Compliance Certificate delivered in accordance with Section 6.01(c) for any applicable period or (b) Tier III as indicated on the grid set forth in the definition of “Applicable Rate”. If any Compliance Certificate required to be delivered in accordance with Section 6.01(c) is not delivered to Administrative Agent on or before the related calculation date, then the levels corresponding to Tier 1 as indicated on the grid set forth in the definition of “Applicable Rate” will apply, effective on the related calculation date until two Business Days after such Compliance Certificate is actually received by Administrative Agent. Notwithstanding the foregoing and for the avoidance of doubt, if, for any period and for any reason, the actual Consolidated Leverage Ratio, as determined by Administrative Borrower in good faith and consented to by the Administrative Agent (such consent not to be unreasonably withheld), is higher than that reported in the related Compliance Certificate delivered for such period, then the Borrowers will immediately, without the requirement of notice or demand from any Person, pay to Lending Parties an amount equal to the excess of (A) the amount of interest or fees that would have accrued had the Applicable Rates for such period been based upon the actual Consolidated Leverage Ratio for such period rather than the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period over (B) the amount of interest or fees that was actually paid by the Borrowers based upon the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period. The foregoing will in no way limit the rights of Administrative Agent to impose the Default Rate of interest pursuant to Section 2.09(b) or to exercise any other remedy available at law or as provided hereunder or under any of the other Loan Documents.

Increases and Decreases of Applicable Rates. Any increase or decrease in any Applicable Rate resulting from a change in the Consolidated Leverage Ratio will become effective as of the date that is the earlier of (i) the last date by which the Borrowers are otherwise required to deliver a Compliance Certificate in accordance with Section 6.01(c) for given period (each such date, a “calculation date”) and (ii) the date that is two Business Days after the date on which the Administrative Borrower, on behalf of the Borrowers, actually delivers a Compliance Certificate in accordance with Section 6.01(c) for a given period. Notwithstanding the foregoing, ; provided that the Applicable Rates in effect from the Closing Date to the date that is two Business Days following receipt by Administrative Agent of a timely delivered Compliance Certificate with respect to the Fiscal Period ending June 30December 31, 2014 (the “Initial Applicable Rates”) shall 2010 will be based on the set at levels corresponding to Tier IV VI as indicated on the grid set forth in the definition of “Applicable Rate”. If ; provided, further, that if any Compliance Certificate required to be delivered in accordance with Section 6.01(c) is not delivered to Administrative Agent on or before the related calculation date, then the levels corresponding to Tier 1 as indicated on the grid set forth in the definition of “Applicable Rate” will apply, effective on the related calculation date until two Business Days after such Compliance Certificate is actually received by Administrative Agent. Notwithstanding the foregoing and for the avoidance of doubt, if, for any period and for any reason, the actual Consolidated Leverage Ratio, as determined by Administrative Borrower Agent in good faith and consented to by the Administrative Agent Borrower (such consent not to be unreasonably withheld), is higher than that reported in the related Compliance Certificate delivered for such period, then the Borrowers will immediately, without the requirement of notice or demand from any Person, pay to Lending Parties an amount equal to the excess of (A) the amount of interest or fees that would have accrued had the Applicable Rates for such period been based upon the actual Consolidated Leverage Ratio for such period rather than the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period over (B) the amount of interest or fees that was actually paid by the Borrowers based upon the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period. The foregoing will in no way limit the rights of Administrative Agent to impose the Default Rate of interest pursuant to Section 2.09(b) or to exercise any other remedy available at law or as provided hereunder or under any of the other Loan Documents.

Increases and Decreases of Applicable Rates. Any increase or decrease in any Applicable Rate resulting from a change in the Consolidated Leverage Ratio will become effective as of the date that is the earlier of (i) the last date by which the Borrowers are otherwise required to deliver a Compliance Certificate in accordance with Section 6.01(c) for given period (each such date, a “calculation date”) and (ii) the date that is two Business Days after the date on which the Administrative Borrower, on behalf of the Borrowers, actually delivers a Compliance Certificate in accordance with Section 6.01(c) for a given period. Notwithstanding the foregoing, the Applicable Rates in effect from the Closing Date to the date that is two Business Days following receipt by Administrative Agent of a timely delivered Compliance Certificate with respect to the Fiscal Period ending June 30March 31, 2014 2012 (the “Initial Applicable Rates”) shall be based on the Tier IV Borrowers’ Consolidated Leverage Ratio as indicated of December 31, 2011. For purposes of determining the Initial Applicable Rates, the Borrowers’ Consolidated Leverage Ratio shall be calculated based on the grid set forth in audited financial statements of the definition of “Applicable Rate”Borrowers for the four quarter period ended December 31, 2011. If any Compliance Certificate required to be delivered in accordance with Section 6.01(c) is not delivered to Administrative Agent on or before the related calculation date, then the levels corresponding to Tier 1 as indicated on the grid set forth in the definition of “Applicable Rate” will apply, effective on the related calculation date until two Business Days after such Compliance Certificate is actually received by Administrative Agent. Notwithstanding the foregoing and for the avoidance of doubt, if, for any period and for any reason, the actual Consolidated Leverage Ratio, as determined by Administrative Borrower in good faith and consented to by the Administrative Agent (such consent not to be unreasonably withheld), is higher than that reported in the related Compliance Certificate delivered for such period, then the Borrowers will immediately, without the requirement of notice or demand from any Person, pay to Lending Parties an amount equal to the excess of (A) the amount of interest or fees that would have accrued had the Applicable Rates for such period been based upon the actual Consolidated Leverage Ratio for such period rather than the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period over (B) the amount of interest or fees that was actually paid by the Borrowers based upon the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period. The foregoing will in no way limit the rights of Administrative Agent to impose the Default Rate of interest pursuant to Section 2.09(b) or to exercise any other remedy available at law or as provided hereunder or under any of the other Loan Documents.