Interest and Applicable Margins. (a) 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 following rates: (i) the Base Rate plus the Applicable Margin per annum, or (ii) at the election of the Borrowers, the applicable LIBOR Rate plus the Applicable Margin per annum. (b) The Applicable Margins 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 Base Rate Margin 1.50 % 2.00 % 2.50 % 3.00 % 3.75 % 4.25 % Applicable LIBOR Margin 3.25 % 3.25 % 3.75 % 4.25 % 5.25 % 5.75 % From the Closing Date until the first adjustment as described below, the Applicable Margins shall be set at Level VI. The Applicable Margins shall be adjusted monthly and retroactively effective as of the first day of a calendar month based upon the information set forth in the Borrowing Base Certificate for the prior 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. (c) 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. (d) 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 Base Rate is a floating rate determined for each day. Each determination by Agent of interest rates and Fees hereunder shall, absent manifest error, be presumptive evidence of the correctness of such rates and Fees. (e) So long as an Event of Default has occurred and is continuing under Section 10.1(a), (h) or (i), 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 Requisite Lenders confirmed by written notice from Agent to the Borrowers, the interest rates applicable to the Loans shall be increased by two percentage points (2%) per annum, above the rates of 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 at the Default Rate shall accrue from the initial date of the applicable Event of Default until that Event of Default is cured or waived and shall be payable upon demand. (f) Subject to the conditions precedent set forth in Section 2.2, the Borrowers shall have the option to (i) request that any Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans from Base Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to a Base Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 2.10(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 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 $100,000 and integral multiples of $100,000 in excess of such amount. Any such election must be made by noon (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 (3) the date on which the Borrowers wish to convert any Base Rate Loan to a LIBOR Loan for a LIBOR Period designated by the Borrowers in such election. If no election is received with respect to a LIBOR Loan by noon (New York time) on the third Business Day prior to the end of the LIBOR Period with respect thereto (or if an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 3.2 shall not have been satisfied), that LIBOR Loan shall be converted to a Base Rate Loan at the end of its LIBOR Period. The Borrowers must make such election by notice to Agent in writing, by telecopy 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 2.4(f). (g) Notwithstanding anything to the contrary set forth in this Section 2.4, 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. 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) The Borrowers 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 following rates: (i) with respect to the Revolving Credit Advances, the Base Rate plus the Applicable Revolver Base Margin per annumannum or, or (ii) at the election of the BorrowersBorrower, 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 (bii) 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 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 established 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 Levels of Applicable Margins set forth below: If Qualified Retail RMR Leverage Ratio is: Level of Applicable Margins: £ 18.0x grids:
2.75:1 Level I > 18.0x or = 2.50:1, but £ 20.0x <2.75:1 Level II > 20.0x or = 2.25:1, but £ 22.0x <2.50:1 Level III > 22.0x or = 2.00:1, but £ 24.0x <2.25:1 Level IV > 24.0x or = 1.75:1, but £ 25.0x <2.00:1 Level V > 25.0x but £ 26.0x Level <1.75:1 Levex XX XXXXX X XXXXX XX XXXXX XXX LEVEL IV LEVEL V LEVEL VI The ------- -------- --------- -------- ------- -------- Applicable Margins shall be as follows: 2.25% 2.00% 1.75% 1.50% 1.25% 1.00% Revolver Base Margin Applicable Base Rate Margin 1.50 3.75% 2.00 3.50% 2.50 3.25% 3.00 3.00% 3.75 2.75% 4.25 2.50% Applicable Revolver LIBOR Margin 3.25 Applicable Term 2.25% 3.25 2.00% 3.75 1.75% 4.25 1.50% 5.25 1.25% 5.75 1.00% From 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 Concurrently with the Closing Date until delivery of those Financial Statements, Borrower shall deliver to Agent and Lenders a certificate, signed by a Responsible Financial Officer of Borrower, setting forth in reasonable detail the first adjustment as described belowbasis for the continuance of, or any change in, the Applicable Margins shall be set at Level VIMargins. The Failure to timely deliver such Financial Statements shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins shall be adjusted monthly and retroactively effective as of to the highest level set forth in the foregoing grid applicable to such Loan, until the first day of a the first calendar month based upon following the information set forth in the Borrowing Base Certificate for the prior monthdelivery of 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.
(cb) 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.
(dc) 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 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. 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 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 shallshall be conclusive, absent manifest error, be presumptive evidence of the correctness of such rates and Fees.
(ed) So long as an Event of Default has shall have occurred and is be continuing under Section 10.1(a8.1(a), (h) or (i), the interest rates applicable to the Loans shall be increased by four percentage points (4%) per annum, and or so long as any other Default or Event of Default (except under Section 10.1(a) to the extent the following sentence shall apply) has have occurred and is be continuing and at the election of Agent (or upon the written request of Requisite Lenders Lenders) confirmed by written notice from Agent to the BorrowersBorrower, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased by two percentage points percent (2%) per annum, annum above the rates of 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 at the Default Rate shall accrue from the initial date of the applicable Event of Default until that Event of Default is cured or waived and shall be payable upon demand.
(f) Subject to the conditions precedent set forth in Section 2.2, the Borrowers shall have the option to (i) request that any Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans from Base Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to a Base Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 2.10(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 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 $100,000 and integral multiples of $100,000 in excess of such amount. Any such election must be made by noon (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 (3) the date on which the Borrowers wish to convert any Base Rate Loan to a LIBOR Loan for a LIBOR Period designated by the Borrowers in such election. If no election is received with respect to a LIBOR Loan by noon (New York time) on the third Business Day prior to the end of the LIBOR Period with respect thereto (or if an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 3.2 shall not have been satisfied), that LIBOR Loan shall be converted to a Base Rate Loan at the end of its LIBOR Period. The Borrowers must make such election by notice to Agent in writing, by telecopy 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 2.4(f).
(g) Notwithstanding anything to the contrary set forth in this Section 2.4, 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. 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.Fees otherwise
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Interest and Applicable Margins. (a) The Borrowers 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 following rates: (i) the Base Index Rate plus the Applicable Revolver Index Margin per annumannum or, or (ii) at the election of the BorrowersBorrower, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
(b) . As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.50 % Applicable Revolver LIBOR Margin 2.75 % The Applicable Margins shall may be established adjusted by reference to the following Levels of Applicable Margins set forth belowgrids: If Qualified Retail RMR Leverage Ratio is: Level of Applicable Margins: £ 18.0x < 1.30:1.00 Level I > 18.0x ³ 1.30:1.00, but £ 20.0x £1.80:1.00 Level II > 20.0x but £ 22.0x 1.80:1.00 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: Revolver Index Margin 0.75 % 0.50 % 0.25 % Applicable Base Rate Revolver LIBOR Margin 1.50 3.00 % 2.00 2.75 % 2.50 % 3.00 % 3.75 % 4.25 % Adjustments in the Applicable LIBOR Margin 3.25 % 3.25 % 3.75 % 4.25 % 5.25 % 5.75 % From Margins commencing with the Closing Date until Fiscal Quarter ending June 30, 2006 shall be implemented quarterly on a prospective basis, for each calendar month commencing at least five (5) days after the first adjustment date of delivery to Lender of the quarterly unaudited or annual audited (as described belowapplicable) Financial Statements evidencing the need for an adjustment. Concurrently with the delivery of those Financial Statements, Borrower shall deliver to 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 shall be set at Level VIMargins. The Failure to deliver timely such Financial Statements shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins shall be adjusted monthly and retroactively effective as of to the highest level set forth in the foregoing grid, until the first day of a the first calendar month based upon following the information set forth in the Borrowing Base Certificate for the prior monthdelivery of 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.
(cb) 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. The foregoing shall not be given effect, however, in respect of the calculation of Financial Covenants relating to scheduled principal payments.
(dc) All computations of Fees calculated on a per annum basis and interest based on the LIBOR Rate shall be made by Agent Lender 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 365/366-360 day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Base Index Rate is a floating rate determined for each day. Each determination by Agent Lender of an interest rates and Fees rate hereunder shall, absent manifest error, shall be presumptive evidence of the correctness of such rates and Fees.
(ed) So long as an Event of Default has occurred and is continuing under Section 10.1(aSections 8.1(a), (h) or (i), the interest rates applicable to the Loans shall be increased by four percentage points (4%) per annum, has occurred and is continuing or 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 continuing, and at the election of Requisite Lenders confirmed by Lender after written notice from Agent Lender to the BorrowersBorrower, the interest rates applicable to the Loans Revolving Loan shall be increased by two percentage points (2%) per annum, annum above the rates of interest or 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 at the Default Rate shall accrue from the initial date of the applicable such Event of Default until that Event of Default is cured or waived and shall be payable in arrears upon demand.
(fe) Subject to the conditions precedent set forth in Section 2.2, the Borrowers 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 Revolving Loan from Base Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to a Base an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 2.10(b1.13(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 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 $100,000 1,000,000 and integral multiples of $100,000 500,000 in excess of such amount. Any such election must be made by noon 11:00 a.m. (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 the Borrowers wish Borrower wishes to convert any Base Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by the Borrowers Borrower in such election. If no election is received with respect to a LIBOR Loan by noon 11:00 a.m. (New York 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 if the additional conditions precedent set forth in Section 3.2 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to a Base an Index Rate Loan at the end of its LIBOR Period. The Borrowers Borrower must make such election by notice to Agent Lender in writing, by telecopy 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 2.4(f1.5(e).
(gf) Notwithstanding anything to the contrary set forth in this Section 2.41.5, 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 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. 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) The Borrowers 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 the following rates: (i) the Base Rate plus the Applicable Base Rate Margin per annumannum or, or (ii) at the election of Borrower and subject to the Borrowersother provisions of this Agreement respecting the availability of LIBOR Rate, the applicable LIBOR Rate plus the Applicable LIBOR Margin per annum.
(b) The . As of the Closing Date and until adjusted as described below, the Applicable Margins 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 are as follows: Applicable Base Rate Margin 1.50 % 2.00 % 2.50 % 3.00 % 3.75 % 4.25 3.50% Applicable LIBOR Margin 3.25 4.50% 3.25 % 3.75 % 4.25 % 5.25 % 5.75 % From The Applicable Margins shall, commencing on the first day of the month following the first anniversary of the Closing Date until Date, be adjusted prospectively on a quarterly basis as determined by Borrower's financial performance, commencing on the first adjustment as described below, the fifth (5th) Business Day after delivery of Borrower's quarterly Financial Statements. Adjustments in Applicable Margins shall be set 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, but > or = 3.5: 1.0 3.25% 4.25% < 3.5: 1.0, but > or = 3.0: 1.0 3.00% 4.00% < 3.0: 1.0 2.75% 3.75% Failure to timely deliver such Financial Statements shall at Level VI. The the election of Agent, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins shall be adjusted monthly and retroactively effective as of to the highest level set forth in the foregoing grid, until the first day of a the first calendar month based upon following the information set forth in the Borrowing Base Certificate for the prior monthdelivery of 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.
(cb) 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. The foregoing shall not be given effect, however, in respect of the calculation of Financial Covenants relating to scheduled principal payments.
(dc) All computations of Fees calculated on a per annum basis and interest based 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. 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 Base Rate is a floating rate determined for each day. Each determination by Agent of an interest rates rate and Fees hereunder shall, absent manifest error, shall be presumptive evidence of the correctness of such rates and Fees, absent manifest error.
(ed) So long as an Event of Default has occurred and is continuing under Section 10.1(a), (h) or (i), 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 the BorrowersBorrower, the interest rates applicable to the Loans Term Loan shall be increased by two percentage points (2%) per annum, annum above the rates of 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 at Obligations during the continuance of such Default Rate shall accrue from the initial date of the applicable or Event of Default until that such Default or Event of Default is cured or waived and shall be payable upon demandin writing.
(fe) Subject to the conditions precedent set forth in Section 2.2So long as no Default of Event of Default has occurred and is continuing, the Borrowers Borrower shall have the option to (i) request that any 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 Loans Loan to a LIBOR Loans, Loan; (iiiii) convert any LIBOR Loan to a Base Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 2.10(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 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 $100,000 500,000 and integral multiples of $100,000 in excess of such amount. Any such election must be made by noon 11:00 a.m. (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 (32) the date on which the Borrowers wish Borrower wishes to convert any Base Rate Loan to a LIBOR Loan for a LIBOR Period designated by the Borrowers Borrower in such election. If no such timely election is received with respect to a LIBOR Loan by noon (New York time) on the third Business Day prior to the end of the LIBOR Period with respect thereto (or if Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 3.2 shall not have been satisfiedcontinuing), that LIBOR Loan shall be converted to a an Base Rate Loan at the end of its LIBOR Period. The Borrowers Borrower must make such election by notice to Agent in writing, by telecopy 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 2.4(f1.4(e).
(gf) Notwithstanding anything to the contrary set forth in this Section 2.41.4, 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. In no event ; 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 any Lender pursuant Agent, on behalf of Lenders, is equal to the terms hereof exceed the amount total interest that such Lender could lawfully would have been received had the interest due rate payable hereunder been calculated (but 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 operation of this Section 2.4(gparagraph) shall control to the extent any other provision of any Loan Document is inconsistent herewith.interest rate payable since the Closing Date as otherwise provided in this
Appears in 1 contract
Samples: Term Loan Agreement (Northland Cable Properties Seven Limited Partnership)
Interest and Applicable Margins. (a) The 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 Base Revolving Credit Advances, the Index Rate plus the Applicable Revolver Index Margin per annumannum or, or (ii) at the election of the BorrowersBorrower Representative in accordance with Section 1.5(e), the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
; (bii) 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 Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.25% Applicable Revolver LIBOR Margin 1.75% Applicable Term Loan Index Margin 5.00% Applicable Unused Line Fee Margin 0.375% 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 the Closing Date through January 31, 2004) (the "Initial Adjustment Date"). Adjustments in Applicable Margins shall will be established determined by reference to the following Levels of 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 Xxxxx XX XXXXX X XXXXX XX XXXXX XXX LEVEL IV ------- -------- --------- -------- Applicable Revolver 0.0% 0.25% 0.50% 0.75% Index Margin Applicable Revolver 1.50% 1.75% 2.00% 2.25% LIBOR Margin Applicable Unused 0.25% 0.375% 0.375% 0.375% Line Fee All adjustments in the Applicable Margins set after the Initial Adjustment Date will be implemented quarterly on a prospective basis, for each quarter commencing the calendar quarter after the date of delivery to Lenders of the quarterly unaudited or annual audited (as applicable) Financial Statements of Parent evidencing the need for an adjustment based on daily average Borrowing Availability for the prior fiscal quarter. Concurrently with the delivery of those Financial Statements, Borrower Representative shall deliver to Administrative Agent and Lenders a certificate, signed by its chief financial officer, setting 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 Base Rate Margin 1.50 % 2.00 % 2.50 % 3.00 % 3.75 % 4.25 % Applicable LIBOR Margin 3.25 % 3.25 % 3.75 % 4.25 % 5.25 % 5.75 % From in reasonable detail the Closing Date until basis for the first adjustment as described belowcontinuance of, or any change in, the Applicable Margins shall be set at Level VIMargins. The Failure to deliver such Financial Statements shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins shall be adjusted monthly and retroactively effective as of to the highest level set forth in the foregoing grid, until the first day of a the first calendar month based upon following the information set forth in the Borrowing Base Certificate for the prior monthdelivery of 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 first day of the first calendar month following the date on which such Event of Default is waived or cured.
(cb) 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.
(dc) All computations of Fees calculated on a per annum basis and interest based on the LIBOR Rate 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. 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 Base 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 shallshall be conclusive, absent manifest error, be presumptive evidence of the correctness of such rates and Fees.
(ed) So long as an any Event of Default has shall have occurred and is continuing under Section 10.1(a)be continuing, and at the election of Administrative Agent (hor upon the written request of Requisite Lenders) or (i)confirmed by written notice from Administrative Agent to Borrower Representative, the interest rates applicable to the Loans shall be increased by four percentage points (4%) per annum, and so long as any other Event the Letter 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 Requisite Lenders confirmed by written notice from Agent to the Borrowers, the interest rates applicable to the Loans Credit Fees shall be increased by two percentage points (2%) per annum, annum above the rates of interest or 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 accrue from the initial date of the applicable such Event of Default until that Event of Default is cured or waived 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.
(fe) 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, the Borrowers Borrower Representative shall have the option to (i) request that any Advance Revolving Credit 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 Base Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to a Base an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 2.10(b1.13(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 $100,000 10,000,000 and integral multiples of $100,000 1,000,000 in excess of such amount. Any such election must be made by noon 11:00 a.m. (New York time) on the 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 the Borrowers wish Borrower Representative wishes to convert any Base Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by the Borrowers Borrower Representative in such election. If no election is received with respect to a LIBOR Loan by noon 11:00 a.m. (New York time) on the 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 3.2 2.3 shall not have been satisfied), that LIBOR Loan shall be converted to a Base an Index Rate Loan at the end of its LIBOR Period. The Borrowers Borrower Representative must make such election by notice to Administrative Agent in writing, by telecopy 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 2.4(f1.5(e).
(gf) Notwithstanding anything to the contrary set forth in this Section 2.41.5, 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, 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 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, due to any circumstance whatsoevernotwithstanding the provisions of this Section 1.5(f), fulfillment a court of any provision hereof, at the time performance of such provision competent jurisdiction 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 finally determine that a Lender has received interest or any other charges of any kind which might be deemed to be interest under applicable law hereunder in excess of the Maximum Lawful Rate, then such excess shall be applied first to any unpaid fees and charges hereunderAdministrative Agent shall, 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 permitted by applicable law, promptly apply such excess in the order specified in Section 1.11 and thereafter shall refund any other provision excess to Borrowers or as a court of any Loan Document is inconsistent herewithcompetent jurisdiction may otherwise order.
Appears in 1 contract
Interest and Applicable Margins. (a) 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 following rates: (i) with respect to the Base Revolving Credit Advances, the Index Rate plus PLUS the Applicable Revolver Index Margin per annumPER ANNUM or, or (ii) at the election of the BorrowersBorrower 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 (bii) with respect to the Swing Line Loan, the Index Rate PLUS the Applicable Revolver Index Margin PER ANNUM. The Applicable Margins Revolver Index Margin, Applicable Revolver LIBOR Margin, and Applicable Unused Line Fee Margin shall be established by reference to the following Levels 0%, 2.5%, and 0.25% PER ANNUM, respectively, as 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 Base Rate Margin 1.50 % 2.00 % 2.50 % 3.00 % 3.75 % 4.25 % Applicable LIBOR Margin 3.25 % 3.25 % 3.75 % 4.25 % 5.25 % 5.75 % From the Closing Date until the first adjustment as described below, the Applicable Margins shall be set at Level VIDate. The Applicable Margins shall be adjusted monthly and retroactively effective (up or down) prospectively on a quarterly basis as of determined by Borrowers' Net Borrowing Availability Ratio , commencing with the first day of a the first calendar month based upon that occurs more than five days after delivery of Borrowers' quarterly Financial Statements to Lenders for the information 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 Applicable Revolver LIBOR 2.0% 2.5% 3.0% Margin Applicable Unused Line Fee 0.25% 0.25% 0.375% Margin All adjustments in the Applicable Margins after March 31, 2001, shall be implemented quarterly on a prospective basis, for each calendar month commencing at least five days after the date of delivery to Lenders of the quarterly unaudited or annual audited (as applicable) Financial Statements evidencing the need for an adjustment. Concurrently with the delivery of such Financial 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 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 Borrowing Base Certificate for the prior monthforegoing grid until delivery of 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.
(cb) 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.
(dc) All computations of Fees calculated on a per annum 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 Fees or 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 Base Rate is a floating rate determined for each day. Each determination by Agent of an interest rates and rate or Fees hereunder shallshall be final, binding and conclusive on Borrower (absent manifest error, be presumptive evidence of the correctness of such rates and Fees).
(ed) So long as an Event of Default has shall have occurred and is be continuing under Section 10.1(aSECTION 8.1(a), (h) or (i)) or so long as any other Default or Event of Default shall have occurred and be continuing, and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to Borrower Representative, the interest rates applicable to the Loans shall be increased by four percentage points (4%) per annum, and so long as any other Event the Letter 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 Requisite Lenders confirmed by written notice from Agent to the Borrowers, the interest rates applicable to the Loans Credit Fees shall be increased by two percentage points (2%) per annum, PER ANNUM above the rates of interest or 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 accrue from the initial date of the applicable such Default or Event of Default until that Default or Event of Default is cured or waived and shall be payable upon demand.
(fe) 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, the Borrowers 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 Base Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to a Base an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 2.10(bSECTION 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 $100,000 2,500,000 and integral multiples of $100,000 500,000 in excess of such amount. Any such election must be made by noon 10:00 a.m. (New York California time) on the 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 the Borrowers wish Borrower Representative wishes to convert any Base Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by the Borrowers Borrower Representative in such election. If no election is received with respect to a LIBOR Loan by noon 10:00 a.m. (New York California 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 shall have occurred and is be continuing or if the additional conditions precedent set forth in Section 3.2 SECTION 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to a Base an Index Rate Loan at the end of its LIBOR Period. The Borrowers Borrower Representative must make such election by notice to Agent in writing, by telecopy 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 2.4(fEXHIBIT 1.5(e).
(gf) Notwithstanding anything to the contrary set forth in this Section 2.4SECTION 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, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, 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, due to any circumstance whatsoevernotwithstanding the provisions of this SECTION 1.5(f), fulfillment a court of any provision hereof, at the time performance of such provision competent jurisdiction 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 finally determine that a Lender has received interest or any other charges of any kind which might be deemed to be interest under applicable law hereunder in excess of the Maximum Lawful Rate, then such excess shall be applied first to any unpaid fees and charges hereunderAgent shall, 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 permitted by applicable law, promptly apply such excess in the order specified in SECTION 1.11 and thereafter shall refund any other provision excess to Borrowers or as a court of any Loan Document is inconsistent herewithcompetent jurisdiction may otherwise order.
Appears in 1 contract
Samples: Credit Agreement (Track N Trail Inc)
Interest and Applicable Margins. (a) 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 following rates: (i) the Base Rate plus the Applicable Margin per annum, or (ii) at the election of the Borrowers, the applicable LIBOR Rate plus the Applicable Margin per annum.
(b) The Applicable Margins 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 > 22.0x Level I > 18.0x < 22.0x but £ ³ 20.0x Level II > < 20.0x but £ 22.0x ³ 18.0x Level III > 22.0x < 18.0x but £ 24.0x ³ 16.0x Level IV > 24.0x but £ 25.0x < 16.0 Level V > 25.0x but £ 26.0x Level VI The Applicable Margins shall be as follows: Applicable Base Rate Margin 1.50 3.000 % 2.00 2.500 % 2.50 2.000 % 3.00 1.500 % 3.75 % 4.25 1.250 % Applicable LIBOR Margin 3.25 4.250 % 3.25 3.750 % 3.75 3.250 % 4.25 2.750 % 5.25 % 5.75 2.500 % From the Closing Date until the first adjustment as described below, the Applicable Margins shall be set at Level VI. I. The Applicable Margins shall be adjusted monthly and retroactively effective as of adjusted, initially, on the first day of a the calendar month following the month in which completion of the post closing requirements set forth in Section 6.13 hereof occurs, and on a quarterly basis thereafter, such further adjustments to be effective retroactively commencing on the first day of each quarter, to the extent that the quarterly unaudited (for the immediately preceding 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 information set 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 all Financial Statements, Holdings shall deliver to Agent and Lenders a certificate, signed by its President or Chief Financial Officer, setting forth in reasonable detail the Borrowing Base Certificate basis for the prior monthcontinuance of, or any change in, the Applicable Margins. 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.
(c) 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.
(d) 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 Base Rate is a floating rate determined for each day. Each determination by Agent of interest rates and Fees hereunder shall, absent manifest error, be presumptive evidence of the correctness of such rates and Fees.
(e) So long as an Event of Default has occurred and is continuing under Section 10.1(a), (hg) or (ih), 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 Requisite Lenders confirmed by written notice from Agent to the Borrowers, the interest rates applicable to the Loans shall be increased by two percentage points (2%) per annum, above the rates of 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 at the Default Rate shall accrue from the initial date of the applicable Event of Default until that Event of Default is cured or waived and shall be payable upon demand.
(f) Subject to the conditions precedent set forth in Section 2.2, the Borrowers shall have the option to (i) request that any Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans from Base Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to a Base Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 2.10(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 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 $100,000 and integral multiples of $100,000 in excess of such amount. Any such election must be made by noon (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 (3) the date on which the Borrowers wish to convert any Base Rate Loan to a LIBOR Loan for a LIBOR Period designated by the Borrowers in such election. If no election is received with respect to a LIBOR Loan by noon (New York time) on the third Business Day prior to the end of the LIBOR Period with respect thereto (or if an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 3.2 shall not have been satisfied), that LIBOR Loan shall be converted to a Base Rate Loan at the end of its LIBOR Period. The Borrowers must make such election by notice to Agent in writing, by telecopy 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 2.4(f).
(g) Notwithstanding anything to the contrary set forth in this Section 2.4, 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. 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) 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 following rates: (i) with respect to the Base Revolving Credit Advances, the Index Rate plus the Applicable Index Margin per annumannum or, or (ii) at the election of the BorrowersBorrower Representative, the applicable Applicable LIBOR Rate plus the Applicable LIBOR Margin per annum.
, based on the aggregate Revolving Credit Advances outstanding from time to time; and (bii) The with respect to the Swing Line Loan, the Index Rate plus the Applicable Index Margin per annum. As of the Restatement Date, the Applicable Margins 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 are as follows: Applicable Base Rate Index Margin 1.50 % 2.00 % 2.50 % 3.00 % 3.75 % 4.25 0.00% Applicable LIBOR Margin 3.25 1.50% 3.25 Applicable L/C Margin 1.50% 3.75 Applicable Unused Line Fee Margin 0.375% 4.25 % 5.25 % 5.75 % From the Closing Date until the first adjustment as described below, the Applicable Margins shall be set at Level VI. The Applicable Margins shall be adjusted monthly and retroactively effective (up or down) prospectively on a quarterly basis as of determined by Borrowers' consolidated financial performance, commencing with the first day of a the first calendar month based upon that occurs more than five (5) days after delivery of Borrowers' quarterly Financial Statements to Lenders for the information 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 Index Margin 0.00% 0.00% 0.25% 0.50% 1.00% Applicable LIBOR Margin 1.25% 1.50% 1.75% 2.00% 2.50% APPLICABLE MARGINS -------------------------------------------------------------- LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V ------- -------- --------- -------- ------- Applicable L/C Margin 1.25% 1.50% 1.75% 2.00% 2.50% Applicable Unused Line Fee Margin 0.25% 0.375 0.375 0.50% 0.50% All adjustments in the Applicable Margins after March 31, 2004 shall be implemented quarterly on a prospective basis, for each calendar month commencing at least five (5) days after the date of delivery to Lenders of the quarterly unaudited or annual audited (as applicable) Financial Statements evidencing the need for an adjustment. Concurrently with the delivery of those 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 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 Borrowing Base Certificate for foregoing grid, until the prior monthfirst day of the first calendar month following the delivery of 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.
(cb) 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.
(dc) 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 Base Index Rate is a floating rate determined for each day. Each determination by Agent of an interest rates rate and Fees hereunder shallshall be final, binding and conclusive on Borrowers, absent manifest error, be presumptive evidence of the correctness of such rates and Fees.
(ed) So long as an Event of Default has occurred and is continuing under Section 10.1(a8.1(a), (h) or (i), the interest rates applicable to the Loans shall be increased by four percentage points (4%) per annum, and or so long as any other Default or 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 the BorrowersBorrower Representative, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased by two percentage points (2%) per annum, annum above the rates of interest or 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 accrue from the initial date of the applicable such Default or Event of Default until that Default or Event of Default is cured or waived and shall be payable upon demand.
(fe) Subject to the conditions precedent set forth in Section 2.2, the Borrowers 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 from Base Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to a Base Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 2.10(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 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 $100,000 and integral multiples of $100,000 in excess of such amount. Any such election must be made by noon (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 (3) the date on which the Borrowers wish to convert any Base Rate Loan to a LIBOR Loan for a LIBOR Period designated by the Borrowers in such election. If no election is received with respect to a LIBOR Loan by noon (New York time) on the third Business Day prior to the end of the LIBOR Period with respect thereto (or if an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 3.2 shall not have been satisfied), that LIBOR Loan shall be converted to a Base Rate Loan at the end of its LIBOR Period. The Borrowers must make such election by notice to Agent in writing, by telecopy 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 2.4(f).
(g) Notwithstanding anything to the contrary set forth in this Section 2.4, 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. 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
Samples: Credit Agreement (Brightpoint Inc)
Interest and Applicable Margins. (a) The Borrowers 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 the following rates: (i) rates with respect to the Base Revolving Credit Advances, the Index Rate plus the Applicable Revolver Index Margin per annumannum or, or (ii) at the election of the BorrowersBorrower, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
(b) The . As of the Closing Date, the Applicable Margins 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 are as follows: Applicable Base Rate Revolver Index Margin 1.50 % 2.00 % 2.50 % Applicable Revolver LIBOR Margin 3.00 % 3.75 Applicable L/C Margin 3.00 % 4.25 % Applicable LIBOR Margin 3.25 % 3.25 % 3.75 % 4.25 % 5.25 % 5.75 % From the Closing Date until the first adjustment as described below, the Applicable Margins shall be set at Level VI. The Applicable Margins shall be adjusted monthly and retroactively effective as by reference to the following grids: Level I > 7.50 3.00 % 4.00 % 4.00 % Level II > 7.00, but < 7.50 2.50 % 3.50 % 3.50 % Level III > 6.5, but < 7.00 2.25 % 3.25 % 3.25 % Level IV > 6.00, but < 6.50 2.00 % 3.00 % 3.00 % Level V > 5.50, but < 6.00 1.75 % 2.75 % 2.75 % Level VI > 5.00, but < 5.50 1.50 % 2.50 % 2.50 % Level VII < 5.00 1.25 % 2.25 % 2.25 % Adjustments in the Applicable Margins commencing with the Fiscal Quarter ending March 31, 2004 shall be implemented quarterly on a prospective basis, commencing two (2) Business Days after the date of delivery to Lenders of the first day quarterly unaudited or annual audited (as applicable) Financial Statements evidencing the need for an adjustment. Notwithstanding the preceding sentence, the Applicable Margins shall not be reduced below Level IV prior to June 30, 2004. Concurrently with the delivery of those Financial Statements, Borrower shall deliver to Agent and Lenders a calendar month based upon certificate, signed by its chief financial officer, setting forth in reasonable detail the information basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such 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 Borrowing Base Certificate for foregoing grid, until the prior monthsecond Business Day following the delivery of 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 first day second Business Day following the date on which such Default or Event of Default is waived or cured.
(cb) 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.
(dc) 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 yearyear (except with respect to Index Rates Loans, 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 shall be 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 Base Index Rate is a floating rate determined for each day. Each determination by Agent of interest rates and Fees hereunder shall, absent manifest error, shall be presumptive evidence of the correctness of such rates and Fees.
(ed) So long as an Event of Default has occurred and is continuing under Section 10.1(a), (h8.1(a) or (ie), the interest rates applicable to the Loans shall be increased by four percentage points (4%) per annum, and or 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 the BorrowersBorrower, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased by two percentage points (2%) per annum, annum above the rates of interest or 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 accrue from the initial date of the applicable such Event of Default until that Event of Default is cured or waived and shall be payable upon demand.
(fe) Subject to the conditions precedent set forth in Section 2.2, the Borrowers 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 from Base Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to a Base an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 2.10(b1.13(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 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 $100,000 500,000 and integral multiples of $100,000 500,000 in excess of such amount. Any such election must be made by 12:00 noon (New York time) on the 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 the Borrowers wish Borrower wishes to convert any Base Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by the Borrowers Borrower in such election. If no election is received with respect to a LIBOR Loan by 12:00 noon (New York 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 3.2 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to a Base an Index Rate Loan at the end of its LIBOR Period. The Borrowers Borrower must make such election by notice to Agent in writing, by telecopy 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 2.4(f1.5(e).
(gf) Notwithstanding anything to the contrary set forth in this Section 2.41.5, 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. 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) The Borrowers 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 Base Revolving Credit Advances, the Index Rate plus the Applicable Revolver Index Margin per annumannum or, or (ii) at the election of the BorrowersBorrower, 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 (bii) with respect to the Swing Line Loan, the Index Rate plus the Applicable Revolver Index Margin per annum. The Applicable Margins 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 are as follows: APPLICABLE MARGINS ------------------ LEVEL I LEVEL II LEVEL III ------- -------- --------- Applicable Base Rate Revolver Index Margin 1.50 1.50% 2.00 1.75% 2.50 % 3.00 % 3.75 % 4.25 2.00% Applicable Revolver LIBOR Margin 3.25 3.00% 3.25 3.25% 3.75 3.50% 4.25 Applicable L/C Margin 3.00% 5.25 3.25% 5.75 3.50% From Applicable Unused Line Fee Margin 0.75% 0.50% 0.375% During the period from the Closing Date until the first adjustment as described belowthrough August 31, 2002, the Applicable Margins shall be set at based on Level VII (regardless of the Total Commitment Usage during such period). The Thereafter, the Applicable Margins shall be adjusted (up or down) prospectively on a monthly and retroactively effective basis as determined by Borrower's Total Commitment Usage calculated on the average daily amount of usage of the first day of a calendar month based upon the information set forth in the Borrowing Base Certificate Revolving Loan Commitment for the prior monthprevious monthly period. If an Event of Default has occurred and is continuing at the time any reduction Adjustments in the Applicable Margins is to be implemented, that reduction shall be deferred until determined by reference to the first day following the date on which such Event of Default is waived grid: LEVEL OF IF TOTAL COMMITMENT USAGE IS: APPLICABLE MARGINS: ----------------------------- ------------------- greater than or cured.equal to zero but less than or equal to 33% Level I greater than 33%, but less than or equal to 66% Level II greater than 66% but less than or equal to 100% Level III
(cb) 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.
(dc) 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 Base Index Rate is a floating rate determined for each day. Each determination by Agent of an interest rates rate and Fees hereunder shallshall be final, binding and conclusive on Borrower, absent manifest error, be presumptive evidence of the correctness of such rates and Fees.
(ed) So long as an Event of Default has occurred and is continuing under Section 10.1(a), (h8.1(a) or so long as any other Event of Default has occurred and is continuing, at the election of Agent (i)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 shall be increased by four percentage points (4%) per annum, and so long as any other Event the Letter 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 Requisite Lenders confirmed by written notice from Agent to the Borrowers, the interest rates applicable to the Loans Credit Fees shall be increased by two percentage points (2%) per annum, annum above the rates of interest or 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 accrue from the initial date of the applicable such Event of Default as specified in such notice until that Event of Default is cured or waived and shall be payable upon demand.
(fe) Subject to the conditions precedent set forth in Section 2.2, the Borrowers 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 from Base Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to a Base an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 2.10(b1.13(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 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 $100,000 1,000,000 and integral multiples of $100,000 250,000 in excess of such amount. Any such election must be made by noon 11:00 a.m. (New York time) on the 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 the Borrowers wish Borrower wishes to convert any Base Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by the Borrowers Borrower in such election. If no election is received with respect to a LIBOR Loan by noon 11:00 a.m. (New York time) on the 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 3.2 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to a Base an Index Rate Loan at the end of its LIBOR Period. The Borrowers Borrower must make such election by notice to Agent in writing, by telecopy 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 2.4(f1.5(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.
(gf) Notwithstanding anything to the contrary set forth in this Section 2.41.5, 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, due to any circumstance whatsoevernotwithstanding the provisions of this Section 1.5(f), fulfillment a court of any provision hereof, at the time performance of such provision competent jurisdiction 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 finally determine that a Lender has received interest or any other charges of any kind which might be deemed to be interest under applicable law hereunder in excess of the Maximum Lawful Rate, then such excess shall be applied first to any unpaid fees and charges hereunderAgent shall, 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 permitted by applicable law, promptly apply such excess in the order specified in Section 1.11 and thereafter shall refund any other provision excess to Borrower or as a court of any Loan Document is inconsistent herewithcompetent jurisdiction may otherwise order.
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Samples: Credit Agreement (Budget Group Inc)
Interest and Applicable Margins. (a) 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 following rates: (i) with respect to the Base Revolving Credit Advances, the Index Rate plus the Applicable Revolver Index Margin per annumannum or, or (ii) at the election of the BorrowersBorrower Representative, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum.
; and (bii) with respect to the Swing Line Loan, the Index Rate plus the Applicable Revolver Index Margin per annum. The Applicable Margins shall be established by reference to adjusted prospectively on the first day of each Fiscal Quarter based on the average daily Borrowing Availability for the immediately preceding Fiscal Quarter in accordance with the following Levels of Applicable Margins set forth belowgrids: If Qualified Retail RMR Leverage Ratio is: Level of Applicable Margins: £ 18.0x > $50,000,000 Level I < $50,000,000, but > 18.0x but £ 20.0x $30,000,000 Level II < $30,000,000, but > 20.0x but £ 22.0x $20,000,000 Level III > 22.0x but £ 24.0x < $20,000,000 Level IV > 24.0x but £ 25.0x Level V > 25.0x but £ 26.0x Level VI The Applicable Margins shall be as follows: Applicable Base Rate Revolver Index Margin 1.50 1.000% 2.00 1.250% 2.50 1.375% 3.00 % 3.75 % 4.25 1.500% Applicable Revolver LIBOR Margin 3.25 2.250% 3.25 2.500% 3.75 2.625% 4.25 2.750% 5.25 Applicable L/C Margin 2.250% 5.75 2.500% 2.625% 2.750% Applicable Unused Line Fee Margin 0.375% 0.375% 0.375% 0.375% From the Closing Date until the first adjustment as described belowday of the month beginning after delivery of the first Borrowing Base Certificate after the first Fiscal Quarter ending at least six (6) months after the Closing Date, the Applicable Margins shall be set at Level VI. The Applicable Margins shall be adjusted monthly and retroactively effective as of the first day of a calendar month based upon the information those set forth in the Borrowing Base Certificate for the prior 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 curedLevel II above.
(cb) 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.
(dc) 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 yearyear (other than interest calculated at the Index Rate, 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 Base Index Rate is a floating rate determined for each day. Each determination by Agent of an interest rates rate and Fees hereunder shall, absent manifest error, shall be presumptive evidence of the correctness of such rates and Fees.
(ed) (i) So long as an Event of Default has occurred and is continuing under Section 10.1(a8.1(a), (h) or (i), the interest rates applicable to the Loans shall be increased by four percentage points (4%) per annum, and or 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 the BorrowersBorrower Representative, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased by two percentage points (2%) per annum, annum above the rates of interest or 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 at the Default Rate shall accrue from the initial date of the applicable Event of Default until that Event of Default is cured or waived and shall be payable upon demand.
(f) Subject to the conditions precedent set forth in Section 2.2, the Borrowers shall have the option to (i) request that any Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans from Base Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to a Base Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 2.10(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 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 $100,000 and integral multiples of $100,000 in excess of such amount. Any such election must be made by noon (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 (3) the date on which the Borrowers wish to convert any Base Rate Loan to a LIBOR Loan for a LIBOR Period designated by the Borrowers in such election. If no election is received with respect to a LIBOR Loan by noon (New York time) on the third Business Day prior to the end of the LIBOR Period with respect thereto (or if an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 3.2 shall not have been satisfied), that LIBOR Loan shall be converted to a Base Rate Loan at the end of its LIBOR Period. The Borrowers must make such election by notice to Agent in writing, by telecopy 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 2.4(f).
(g) Notwithstanding anything to the contrary set forth in this Section 2.4, 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. 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.
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