Interest and Applicable Margins. (a) Borrower shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the Index Rate plus the Applicable Revolver Index Margin per annum or, at the election of Borrower, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum. (A) As of the First A&R Closing Date, the Applicable Margins were as follows: Applicable Revolver Index Margin 0.00 % Applicable Revolver LIBOR Margin 1.25 % Applicable L/C Margin 1.25 % Applicable Unused Line Fee Margin 0.375 % At all times from and after the First A&R Closing Date until (but excluding) the Closing Date, the Applicable Margins shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.00 % 0.00 % 0.25 % 0.50 % Applicable Revolver LIBOR Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable L/C Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable Unused Line Fee Margin 0.375 % 0.375 % 0.25 % 0.25 % Adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on or about December 31, 2005 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. (B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum. (b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. (c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent of interest rates and Fees hereunder shall be presumptive evidence of the correctness of such rates and Fees. (d) So long as an Event of Default has occurred and is continuing under Section 8.1(a), (h) or (i), or so long as any other Event of Default has occurred and is continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to Borrower, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased to the rate per annum which is determined by adding two percent (2.0%) per annum to the Applicable Margin then in effect for such Loans (plus the LIBOR Rate or Index Rate, as the case may be) or to the rate of such Fees otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “Default Rate”), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of such Event of Default until that Event of Default is cured or waived. (e) Subject to the conditions precedent set forth in Section 2.2, Borrower shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 and integral multiples of $1,000,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago time) on the Third Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago time) on the Third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower must make such election by notice to Agent in writing, including by Electronic Transmission. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion/Continuation”) in the form of Exhibit 1.5(e). (f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate.

Appears in 1 contract

Samples: Credit Agreement (Insteel Industries Inc)

Interest and Applicable Margins. (a) Borrower shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the Index Rate plus the Applicable Revolver Index Margin per annum or, at the election of Borrower, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum. (A) As of the First A&R Closing Date, the Applicable Margins were as follows: Applicable Revolver Index Margin 0.00 % Applicable Revolver LIBOR Margin 1.25 % Applicable L/C Margin 1.25 % Applicable Unused Line Fee Margin 0.375 % At all times from and after the First A&R Closing Date until (but excluding) the Closing Date, the Applicable Margins shall be adjusted by reference to the following grids: Applicable Revolver ~~Index Margin~~ 0.00 % 0.00 % 0.25 % 0.50 % Index Margin Applicable Revolver ~~LIBOR Margin~~ 1.25 % 1.50 % 1.75 % 2.00 % LIBOR Margin Applicable L/C ~~Margin~~ 1.25 % 1.50 % 1.75 % 2.00 % Margin Applicable Unused Line ~~Fee Margin~~ 0.375 % 0.375 % 0.25 % 0.25 % Fee Margin Adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on or about December 31, 2005 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. (B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver ~~Index Margin~~ 0.75 % 1.00 % 1.50 % Index Margin Applicable Revolver LIBOR ~~Margin~~ 2.25 % 2.50 % 3.00 % Margin Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum. (b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. (c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent of interest rates and Fees hereunder shall be presumptive evidence of the correctness of such rates and Fees. (d) So long as an Event of Default has occurred and is continuing under Section 8.1(a), (h) or (i), or so long as any other Event of Default has occurred and is continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to Borrower, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased to the rate per annum which is determined by adding two percent (2.0%) per annum to the Applicable Margin then in effect for such Loans (plus the LIBOR Rate or Index Rate, as the case may be) or to the rate of such Fees otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “Default Rate”), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall be payable upon demand and shall accrue from the initial date of such Event of Default until that Event of Default is cured or waived. (e) Subject to the conditions precedent set forth in Section 2.2, Borrower shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 and integral multiples of $1,000,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago time) on the Third Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago time) on the Third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower must make such election by notice to Agent in writing, including by Electronic Transmission. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion/Continuation”) in the form of Exhibit 1.5(e). (f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate.

Appears in 1 contract

Samples: Credit Agreement (Insteel Industries Inc)

Interest and Applicable Margins. (a) Borrower shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the ~~various~~ Revolving Loans being made by each Lender, in arrears on each applicable Interest Payment Date, with respect to the Revolving Credit Advances, at the Index Rate plus the Applicable Revolver Index Margin per annum ~~or, at~~ based on the ~~election of Borrower, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum. (A) As of the First A&R Closing Date, the Applicable Margins were as follows:~~ aggregate Revolving Credit Advances outstanding from time to time. The Applicable Revolver Index ~~Margin 0.00 %~~ Margin, Applicable ~~Revolver LIBOR Margin 1.25 % Applicable~~ Standby L/C ~~Margin 1.25 %~~ Fee and Applicable Unused Line Fee ~~Margin 0.375~~ will be 2.25%, 2.00% ~~At all times from~~ and ~~after the First A&R Closing Date until (but excluding)~~ .375% per annum, respectively, as of the Closing Date~~, the~~ . The Applicable Margins ~~shall~~ will be adjusted (up or down) prospectively on a quarterly basis as determined by Borrower's financial performance, commencing with the first day of the first calendar month that occurs more than five (5) days after delivery of Borrower's quarterly Financial Statements to Lenders for the applicable Fiscal Quarter(s) set forth below. Adjustments in Applicable Margins will be determined by reference to the following grids: APPLICABLE MARGIN FOR FISCAL QUARTER ENDING DECEMBER 31, 1999: If Adjusted EBITDA is: Level of Applicable Margins: >$15,000,000 Level I >$13,000,000, but < $15,000,000 Level II >$ 9,000,000, but < $13,000,000 Level III >$ 8,000,000, but < $ 9,000,000 Level IV < $ 8,000,000 Level V APPLICABLE MARGINS FOR 2 FISCAL QUARTERS ENDING MARCH 31, 2000: If Adjusted EBITDA is: Level of Applicable Margins: >$23,000,000 Level I >$19,500,000, but < $23,000,000 Level II >$13,500,000, but < $19,500,000 Level III >$12,000,000, but < $13,500,000 Level IV <$12,000,000 Level V APPLICABLE MARGINS FOR 3 FISCAL QUARTERS ENDING JUNE 30, 2000: If Adjusted EBITDA is: Level of Applicable Margins: >$30,500,000 Level I >$26,000,000, but < $30,500,000 Level II >$18,500,000, but < $26,000,000 Level III >$16,500,000, but < $18,500,000 Level IV <$16,500,000 Level V APPLICABLE MARGINS FOR 4 FISCAL QUARTERS ENDING SEPTEMBER 30, 2000: If Adjusted EBITDA is: Level of Applicable Margins: >$35,000,000 Level I >$32,500,000, but < $35,000,000 Level II >$24,000,000, but < $32,500,000 Level III >$21,000,000, but < $24,000,000 Level IV <$21,000,000 Level V APPLICABLE MARGINS FOR 4 FISCAL QUARTERS ENDING DECEMBER 31, 2000 AND THEREAFTER: If Adjusted EBITDA is: Level of Applicable Margins: >$38,000,000 Level I >$35,000,000, but < $38,000,000 Level II >$26,000,000, but < $35,000,000 Level III >$23,000,000, but < $26,000,000 Level IV <$23,000,000 Level V Applicable Margins Level I Level II Level III Level IV Level V Applicable Revolver Index 1.75% 2.0% 2.25% 2.50% 2.75% Margin ~~0.00 % 0.00 % 0.25 % 0.50 %~~ Applicable ~~Revolver LIBOR Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable~~ Standby L/C ~~Margin 1.25~~ Fee 1.75% ~~1.50~~ 2.0% ~~1.75~~ 2.0% ~~2.00~~ 2.0% 2.25% Applicable Unused Line Fee ~~Margin 0.375~~ .25% ~~0.375~~ .375% ~~0.25~~ .375% ~~0.25~~ .375% ~~Adjustments~~ .50% All adjustments in the Applicable Margins ~~commencing with the Fiscal Quarter ending on or about~~ after December 31, ~~2005~~ 1999 shall be implemented quarterly on a prospective basis, ~~commencing on the first day of the~~ for each calendar month ~~that begins~~ commencing at least five (5) days after the date of delivery to Lenders of the ~~Compliance Certificate delivered to Agent and Lenders pursuant to paragraph~~ quarterly unaudited or annual audited (bas applicable) ~~of Annex E with respect to a Fiscal Quarter~~ Financial Statements evidencing the need for an adjustment. Concurrently with the delivery of ~~such Compliance Certificate~~those Financial Statements, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such ~~Compliance Certificate~~ Financial Statements shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the ~~date~~ first day of the first calendar month following the delivery of ~~a Compliance Certificate~~ those Financial Statements demonstrating that such an increase is not required. If a Default or an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. (B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the first calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until following the date on which such Default or Event of Default is waived or cured. ~~After~~ Notwithstanding anything to the ~~Closing Date~~contrary set forth herein, the Applicable ~~Unused Line Fee Margin~~ Margins shall not be adjusted ~~as follows:~~ down unless Excess Cash Flow exists for the four most recent Fiscal Quarters then ended (~~i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during~~ or with respect to any Fiscal Quarter ending on or before September 30, 2000, the period ~~for which~~ commencing on October 1, 1999 and ending on the ~~Fee under Section 1.9(b) is due is equal to or greater than 50%~~ last day of ~~the average Maximum Amount during~~ such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annumFiscal Quarter). (b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day ~~(except as set forth in the definition of LIBOR Period)~~ and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. (c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a three hundred and sixty (360-) day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. ~~The Index Rate is a floating rate determined for each day.~~ Each determination by Agent of an interest ~~rates~~ rate and Fees hereunder shall be ~~presumptive evidence of the correctness of such rates and Fees~~conclusive, absent manifest error. (d) So long (i) as an Event of Default has occurred and is continuing under Section ~~8.1(a), (h~~8.1(h) or (i), or (ii) so long as any other Event of Default ~~has~~ shall have occurred and is be continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to Borrower, then the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased ~~to the rate per annum which is determined~~ by ~~adding~~ two percent (~~2.0~~2%) per annum to above the ~~Applicable Margin then in effect for such Loans (plus the LIBOR Rate~~ rates of interest or ~~Index Rate, as the case may be) or to~~ the rate of such Fees otherwise applicable hereunder ~~unless Agent or Requisite Lenders elect to impose a smaller increase~~ (~~the “~~"Default Rate”"), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall ~~be payable upon demand and shall~~ accrue from the initial date of such Default or Event of Default until that Default or Event of Default is cured or ~~waived~~waived and shall be payable upon demand. (e) Subject to the conditions precedent set forth in Section 2.2, Borrower shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 and integral multiples of $1,000,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago time) on the Third Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago time) on the Third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower must make such election by notice to Agent in writing, including by Electronic Transmission. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion/Continuation”) in the form of Exhibit 1.5(e). (f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “"Maximum Lawful Rate”"), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest ~~that~~ which would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of interest and in the manner provided in Sections 1.5(a) through (d) above, unless and until the rate of interest again exceeds the Maximum Lawful Rate, and at that time this paragraph shall again apply. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount ~~that~~ which such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum Lawful Rate is calculated pursuant to this paragraph, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which such calculation is made. If, notwithstanding the provisions of this Section 1.5(e), a court of competent jurisdiction shall finally determine that a Lender has received interest hereunder in excess of the Maximum Lawful Rate, Agent shall, to the extent permitted by applicable law, promptly apply such excess in the order specified in Section 1.11 and thereafter shall refund any excess to Borrower or as a court of competent jurisdiction may otherwise order.

Appears in 1 contract

Samples: Credit Agreement (Gibson Greetings Inc)

Interest and Applicable Margins. (a) ~~Borrower~~ Borrowers shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the following rates: (i) with respect to the Revolving Credit Advances, the Index Rate plus the Applicable Revolver Index Margin per annum or, at the election of ~~Borrower~~Borrower Representative, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum and (ii) with respect to the Swing Line Loan, the Index Rate plus the Applicable Revolver Index Margin per annum~~. (A)~~ . As of the ~~First A&R~~ Closing Date, the Applicable Margins ~~were~~ are as follows: Applicable Revolver Index Margin 0.00 % Applicable Revolver LIBOR Margin ~~1.25~~ 1.00 % Applicable L/C Margin ~~1.25~~ 1.00 % Applicable Unused Line Fee Margin ~~0.375~~ 0.32 % ~~At all times from and after the First A&R Closing Date until (but excluding) the Closing Date, the~~ The Applicable Margins ~~shall~~ may be adjusted by reference to the following grids: >$50,000,000 Level I >$35,000,000 but <$50,000,000 Level II >$25,000,000 but <35,000,000 Level III <$25,000,000 Level IV Applicable Revolver Index Margin 0.00 % 0.00 % 0.00 % 0.25 ~~% 0.50~~ % Applicable Revolver LIBOR Margin 1.00 % 1.25 % 1.50 % 1.75 % ~~2.00 %~~ Applicable L/C Margin 1.00 % 1.25 % 1.50 % 1.75 % ~~2.00 %~~ Applicable Unused Line Fee Margin ~~0.375~~ 0.32 % ~~0.375~~ 0.30 % 0.25 % 0.25 % Adjustments in the Applicable Margins commencing with the Fiscal Quarter ~~ending on or about December 31~~beginning January 1, ~~2005~~ 2007 shall be implemented quarterly ~~on a prospective basis, commencing on~~ as of the first day of the ~~calendar month that begins after the date of~~ Fiscal Quarter in which Agent receives delivery ~~to Lenders~~ of the ~~Compliance~~ Borrowing Base Certificate ~~delivered to Agent~~ dated and ~~Lenders pursuant to paragraph (b)~~ accurate as of ~~Annex E with respect to a~~ the last day of the most recently completed Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such ~~Compliance~~ Borrowing Base Certificate, Borrower Representative shall deliver to Agent and Lenders a certificate, signed by its chief financial ~~officer~~officer or treasurer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins, including, without limitation, a calculation of Average Availability for such period. Failure to timely deliver such ~~Compliance~~ quarter-end Borrowing Base Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the ~~date~~ first day of the first calendar month following the delivery of a ~~Compliance~~ Borrowing Base Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. (B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the first calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until following the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum. (b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. (c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent of interest rates and Fees hereunder shall be presumptive evidence of the correctness of such rates and Fees. (d) So long as an Event of Default has occurred and is continuing under Section 8.1(a), (h) or (i), or so long as any other Event of Default has occurred and is continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to ~~Borrower~~Borrower Representative, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased ~~to the rate per annum which is determined~~ by ~~adding~~ two ~~percent~~ percentage points (~~2.0~~2%) per annum to above the ~~Applicable Margin then in effect for such Loans (plus the LIBOR Rate~~ rates of interest or ~~Index Rate, as the case may be) or to~~ the rate of such Fees otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “Default Rate”), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall ~~be payable upon demand and shall~~ accrue from the initial date of such Event of Default until that Event of Default is cured or ~~waived~~waived and shall be payable upon demand. (e) Subject to the conditions precedent set forth in Section 2.2, Borrower Representative shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate ~~Loan,~~ Loan subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $~~2,000,000~~ 5,000,000 and integral multiples of $~~1,000,000~~ 500,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago time) on the Third Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower Representative wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower Representative in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago time) on the Third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower Representative must make such election by notice to Agent in writing, ~~including~~ by ~~Electronic Transmission~~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 1.5(e). No Loan may be made as or converted into a LIBOR Loan until the earlier of (i) forty-five (45) days after the Closing Date or (ii) completion of primary syndication as determined by Agent. (f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, ~~Borrower~~ Borrowers shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate.

Appears in 1 contract

Samples: Credit Agreement (Huttig Building Products Inc)

Interest and Applicable Margins. (a) ~~Borrower~~ Borrowers shall pay interest to Agent, for the ratable benefit of ~~Lenders~~ Lenders, in accordance with the ~~various~~ Loans being made by each Lender (or in the case of the Swing Line Loan, for the benefit of the Swing Line Lender), in arrears on each applicable Interest Payment Date, at the following per annum rates: (i) with respect to the Revolving Credit Advances which are designated as Index Rate Loans, the Index Rate plus the Applicable Revolver Index Margin ~~per annum~~ or, with respect to Revolving Credit Advances which are designated as LIBOR Loans, at the election of ~~Borrower~~Borrower Representative, the applicable LIBOR Rate plus the Applicable Revolver LIBOR ~~Margin per annum.~~ Margin; and (Aii) with respect to the Swing Line Loan, the Index Rate plus the Applicable Revolver Index Margin. As of the ~~First A&R Closing~~ Second Amendment Effective Date, the Applicable Margins ~~were~~ are as follows: Applicable Revolver Index Margin ~~0.00~~ 0.25 % Applicable Revolver LIBOR Margin ~~1.25~~ 2.75 % Applicable L/C Margin ~~1.25~~ 2.75 % The Applicable ~~Unused Line Fee Margin 0.375~~ Margins shall be adjusted (up or down) prospectively on a quarterly basis on the first Business Day of each Fiscal Quarter as determined by average daily Borrowing Availability for the immediately preceding Fiscal Quarter, commencing January 1, 2011. Adjustments in Applicable Margins will be determined by reference to the following grids: > $20,000,000 0.00 % ~~At all times from~~ 2.50 % > $10,000,000 and ~~after~~ < $20,000,000 0.25 % 2.75 % < $10,000,000 0.50 % 3.00 % In the ~~First A&R Closing Date until (but excluding)~~ event that EBITDA for the ~~Closing~~ Fiscal Year ending on or about December 31, 2010 exceeds $11,800,000, then beginning on the first anniversary of the Second Amendment Effective Date, the Applicable Margins shall be ~~adjusted by reference to the following grids~~reset as described below: ~~Applicable Revolver Index Margin~~ > $20,000,000 0.00 % 2.25 % > $10,000,000 and < $20,000,000 0.00 % 2.50 % < $10,000,000 0.25 % ~~0.50~~ 2.75 % Applicable Revolver LIBOR Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable L/C Margin 1.25 % 1.50 % 1.75 % 2.00 % Applicable Unused Line Fee Margin 0.375 % 0.375 % 0.25 % 0.25 % Adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on or about December 31, 2005 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. ~~Failure to timely deliver such Compliance Certificate shall, in addition to~~ If any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If Default or an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. (B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the first calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until following the date on which ~~such Event~~ all Defaults or Events of Default is are waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum. (b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. (c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such Fees and interest ~~and Fees~~ are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent of an interest ~~rates~~ rate and Fees hereunder shall be ~~presumptive evidence of the correctness of such rates~~ final, binding and ~~Fees~~conclusive on Borrowers, absent manifest error. (d) So long as an Event of Default has occurred and is continuing under Section ~~8.1(a~~6.1(a), (hf) or (i)g) and without notice of any kind, or so long as any other Event of Default has occurred and is continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to ~~Borrower~~Borrower Representative, the interest rates applicable to the Loans and the Letter of Credit ~~Fees~~ Fee shall be increased ~~to the rate per annum which is determined~~ by ~~adding~~ two ~~percent~~ percentage points (~~2.0~~2%) per annum to above the ~~Applicable Margin then in effect for such Loans (plus the LIBOR Rate~~ rates of interest or ~~Index Rate, as the case may be) or to~~ the rate of such ~~Fees~~ Fee otherwise applicable hereunder ~~unless Agent or Requisite Lenders elect to impose a smaller increase~~ (~~the~~ “Default Rate”), ) and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall ~~be payable upon demand and shall~~ accrue from the initial date of any such Event of Default until ~~that~~ such Event of Default is cured or ~~waived. (e) Subject to~~ waived and shall be payable upon demand, but in any event, shall be payable on the ~~conditions precedent~~ next regularly scheduled payment date set forth ~~in Section 2.2,~~ herein for such Obligation. Borrower Representative shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans ~~(other than the Swing Line Loan)~~ from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of the LIBOR ~~breakage costs~~ Breakage Fee in accordance with Section ~~1.13(b~~1.3(e) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan ~~(other than the Swing Line Loan)~~ as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $~~2,000,000~~ 250,000 and integral multiples of $~~1,000,000~~ 100,000 in excess of such amount. Any such election must be made by ~~11:00 a.m.~~ 1:00 p.m. (~~Chicago~~ New York time) on the ~~Third~~ third Business Day prior to (1) the date of any proposed Revolving Credit Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower Representative wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower Representative in such election. If no election is received with respect to a LIBOR Loan by ~~11:00 a.m.~~ 1:00 p.m. (~~Chicago~~ New York time) on the ~~Third~~ third Business Day prior to the end of the LIBOR Period with respect ~~thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 shall not have been satisfied)~~thereto, that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower Representative must make such election by notice to Agent in writing, ~~including~~ by ~~Electronic Transmission~~fax or overnight courier. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion/Continuation”) in the form of Exhibit ~~1.5(e~~1.2(e). No Loan shall be made, converted into or continued as a LIBOR Loan, if an Event of Default has occurred and is continuing and Agent or Requisite Lenders have determined not to make or continue any Loan as a LIBOR Loan as a result thereof. (fe) Notwithstanding anything to the contrary set forth in this Section ~~1.5~~1.2, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, ~~Borrower~~ Borrowers shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of interest and in the manner provided in Sections 1.2(a) through (e), unless and until the rate of interest again exceeds the Maximum Lawful Rate, and at that time this paragraph shall again apply. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum Lawful Rate is calculated pursuant to this paragraph, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which such calculation is made. If, notwithstanding the provisions of this Section 1.2(f), a court of competent jurisdiction shall determine by a final, non-appealable order that a Lender has received interest hereunder in excess of the Maximum Lawful Rate, Agent shall, to the extent permitted by applicable law, promptly apply such excess as specified in Section 1.5(e) and thereafter shall refund any excess to Borrowers or as such court of competent jurisdiction may otherwise order.

Appears in 1 contract

Samples: Credit Agreement (Golfsmith International Holdings Inc)

Interest and Applicable Margins. (a) Borrower shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the ~~various~~ Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the Index Rate plus the Applicable Revolver Index Margin per annum or, at the election of Borrower, at the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum~~. (A)~~ , based on the aggregate Revolving Credit Advances outstanding from time to time. As of the ~~First A&R~~ Closing Date, the Applicable Margins ~~were~~ are as follows: Applicable Revolver Index Margin ~~0.00~~ 0.75 % Applicable Revolver LIBOR Margin ~~1.25~~ 2.00 % Applicable L/C Margin ~~1.25~~ 2.00 % Applicable Unused Line Fee Margin ~~0.375~~ 0.25 % ~~At all times from and after the First A&R Closing Date until (but excluding) the Closing Date, the~~ The Applicable Margins shall be adjusted (up or down) prospectively on a quarterly basis as determined based upon the average daily Borrowing Availability for the then most recently ended Fiscal Quarter, commencing with the Fiscal Quarter ending on September 30, 2007. All adjustments in the Applicable Margins thereafter shall be implemented quarterly on a prospective basis at any time there is a need for an adjustment (the determination as to whether an adjustment is necessary to be made by Agent in good faith). Adjustments in Applicable Margins will be determined by reference to the following grids: ³ $45,000,000 Level I ³ $35,000,000, but < $45,000,000 Level II ³ $20,000,000, but < $35,000,000 Level III ³ $7,500,000, but < $20,000,000 Level IV < $7,500,000 Level V Applicable Revolver Index Margin ~~0.00 % 0.00 %~~ 0.25 % 0.50 % 0.75 % 1.00 % 1.25 % Applicable Revolver LIBOR Margin ~~1.25 %~~ 1.50 % 1.75 % 2.00 % 2.25 % 2.50 % Applicable L/C Margin ~~1.25 %~~ 1.50 % 1.75 % 2.00 % 2.25 % 2.50 % Applicable Unused Line Fee Margin 0.375 % 0.375 % 0.25 % 0.25 % ~~Adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on~~ 0.25 % If any Default or about December 31, 2005 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. (B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the first calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until following the date on which ~~such Event~~ all Defaults or Events of Default is are waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum. (b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. (c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent of an interest ~~rates~~ rate and Fees hereunder shall be ~~presumptive evidence of the correctness of such rates~~ final, binding and ~~Fees~~conclusive on Borrower, absent manifest error. (d) So long as an Event of Default has occurred and is continuing under Section 8.1(a), (h) or (i), or so long as any other Default or Event of Default has occurred and is continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to Borrower, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased ~~to the rate per annum which is determined~~ by ~~adding~~ two ~~percent~~ percentage points (~~2.0~~2%) per annum to above the ~~Applicable Margin then in effect for such Loans (plus the LIBOR Rate~~ rates of interest or ~~Index Rate, as the case may be) or to~~ the rate of such Fees otherwise applicable hereunder ~~unless Agent or Requisite Lenders elect to impose a smaller increase~~ (~~the~~ “Default Rate”), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall ~~be payable upon demand and shall~~ accrue from the initial date of such Default or Event of Default until that Default or Event of Default is cured or ~~waived~~waived and shall be payable upon demand. (e) Subject to the conditions precedent set forth in Section 2.2, Borrower shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $~~2,000,000~~ 1,000,000 and integral multiples of $~~1,000,000~~ 500,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago 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 Borrower wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago time) on the ~~Third~~ 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 the additional conditions precedent set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower must make such election by notice to Agent in writing, ~~including~~ by ~~Electronic Transmission~~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 1.5(e). (f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate~~; provided~~. Thereafter, ~~however~~interest hereunder shall be paid at the rate(s) of interest and in the manner provided in Sections 1.5(a) through (e), ~~that if at any time thereafter~~ unless and until the rate of interest ~~payable hereunder is less than~~ again exceeds the Maximum Lawful Rate, ~~Borrower~~ and at that time this paragraph 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 Agreementagain apply. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum Lawful Rate is calculated pursuant to this paragraph, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which such calculation is made. If, notwithstanding the provisions of this Section 1.5(f), a court of competent jurisdiction shall finally determine that a Lender has received interest hereunder in excess of the Maximum Lawful Rate, Agent shall, to the extent permitted by applicable law, promptly apply such excess in the order specified in Section 1.11 and thereafter shall refund any excess to Borrower or as a court of competent jurisdiction may otherwise order.

Appears in 1 contract

Samples: Credit Agreement (Navarre Corp /Mn/)

Interest and Applicable Margins. (a) ~~Borrower~~ Borrowers shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the following rates: (i) with respect to the Revolving Credit Advances, the Index Rate plus the Applicable Revolver Index Margin per annum or, at the election of ~~Borrower~~Borrower Representative, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum and (ii) with respect to the Swing Line Loan, the Index Rate plus the Applicable Revolver Index Margin per annum~~. (A)~~ . As of the ~~First A&R Closing~~ Restatement Date, the Applicable Margins ~~were~~ are as follows: Applicable Revolver Index Margin ~~0.00~~ 0.50 % Applicable Revolver LIBOR Margin ~~1.25~~ 2.50 % Applicable L/C Margin ~~1.25~~ 2.50 % Applicable Unused Line Fee Margin 0.375 % ~~At all times from and after the First A&R Closing Date until~~ The Applicable Margins (~~but excluding) the Closing Date,~~ other than the Applicable ~~Margins shall~~ Unused Line Fee Margin) may be adjusted by reference to the following grids: >$50,000,000 Level I >$35,000,000 but <$50,000,000 Level II >$25,000,000 but <35,000,000 Level III >$25,000,000 Level IV Applicable Revolver Index Margin ~~0.00 % 0.00 %~~ 0.25 % 0.50 % 0.75 % 1.00 % Applicable Revolver LIBOR Margin ~~1.25~~ 2.25 % ~~1.50~~ 2.50 % ~~1.75~~ 2.75 % ~~2.00~~ 3.00 % Applicable L/C Margin ~~1.25~~ 2.25 % ~~1.50~~ 2.50 % ~~1.75~~ 2.75 % ~~2.00~~ 3.00 % The Applicable Unused Line Fee Margin ~~0.375~~ may be adjusted by reference to the following grids: >$60,000,000 Level I <$60,000,000 Level II Applicable Unused Line Fee Margin 0.30 % 0.375 ~~% 0.25 % 0.25~~ % Adjustments in the Applicable Margins commencing with the Fiscal Quarter ~~ending on or about December 31~~beginning October 1, ~~2005~~ 2010 shall be implemented quarterly ~~on a prospective basis, commencing on~~ as of the first day of the ~~calendar month that begins after the date of~~ Fiscal Quarter in which Agent receives delivery ~~to Lenders~~ of the ~~Compliance~~ Borrowing Base Certificate ~~delivered to Agent~~ dated and ~~Lenders pursuant to paragraph (b)~~ accurate as of ~~Annex E with respect to a~~ the last day of the most recently completed Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such ~~Compliance~~ Borrowing Base Certificate, Borrower Representative shall deliver to Agent and Lenders a certificate, signed by its chief financial ~~officer~~officer or treasurer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins, including, without limitation, a calculation of Average Availability for such period. Failure to timely deliver such ~~Compliance~~ quarter-end Borrowing Base Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the ~~date~~ first day of the first calendar month following the delivery of a ~~Compliance~~ Borrowing Base Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. (B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the first calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until following the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum. (b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. (c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent of interest rates and Fees hereunder shall be presumptive evidence of the correctness of such rates and Fees. (d) So long as an Event of Default has occurred and is continuing under Section 8.1(a), (h) or (i), or so long as any other Event of Default has occurred and is continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to ~~Borrower~~Borrower Representative, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased ~~to the rate per annum which is determined~~ by ~~adding~~ two ~~percent~~ percentage points (~~2.0~~2%) per annum to above the ~~Applicable Margin then in effect for such Loans (plus the LIBOR Rate~~ rates of interest or ~~Index Rate, as the case may be) or to~~ the rate of such Fees otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “Default Rate”), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall ~~be payable upon demand and shall~~ accrue from the initial date of such Event of Default until that Event of Default is cured or ~~waived~~waived and shall be payable upon demand. (e) Subject to the conditions precedent set forth in Section 2.2, Borrower Representative shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate ~~Loan,~~ Loan subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $~~2,000,000~~ 5,000,000 and integral multiples of $~~1,000,000~~ 500,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago time) on the Third Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower Representative wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower Representative in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago time) on the Third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower Representative must make such election by notice to Agent in writing, ~~including~~ by ~~Electronic Transmission~~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 1.5(e). (f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, ~~Borrower~~ Borrowers shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by 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~~ Restatement Date as otherwise provided in this Agreement. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate.

Appears in 1 contract

Samples: Credit Agreement (Huttig Building Products Inc)

Interest and Applicable Margins. (a) Borrower shall pay interest to Agent, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, in arrears on each applicable Interest Payment Date, at the Index Rate plus the Applicable Revolver Index Margin per annum or, at the election of Borrower, the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum~~. (A)~~ . As of the ~~First A&R~~ Closing Date, the Applicable Margins ~~were~~ are as follows: Applicable Revolver Index Margin ~~0.00~~ 0.00% Applicable Revolver LIBOR Margin ~~1.25~~ 1.25% Applicable L/C Margin ~~1.25~~ 1.25% Applicable Unused Line Fee Margin ~~0.375~~ 0.375% ~~At all times from and after the First A&R Closing Date until (but excluding) the Closing Date, the~~ The Applicable Margins shall be adjusted by reference to the following grids: LEVEL OF IF REFERENCE AVAILABILITY IS: APPLICABLE MARGINS: ---------------------------- ------------------ >$35,000,000 Level I > $25,000,000, but < or = $35,000,000 Level II > $15,000,000, but < or = $25,000,000 Level III < or = $15,000,000 Level IV APPLICABLE MARGINS ------------------- LXXXX X XXXXX XX XXXXX XXX XXXXX XX ------ ------- -------- -------- Applicable Revolver 0.00% 0.00% 0.25% 0.50% Index Margin ~~0.00 % 0.00 % 0.25 % 0.50 %~~ Applicable Revolver LIBOR Margin ~~1.25~~ 1.25% ~~1.50~~ 1.50% ~~1.75~~ 1.75% ~~2.00~~ 2.00% Applicable L/C Margin ~~1.25~~ 1.25% ~~1.50~~ 1.50% ~~1.75~~ 1.75% ~~2.00~~ 2.00% Applicable Unused Line Fee Margin ~~0.375~~ 0.375% ~~0.375~~ 0.375% ~~0.25~~ 0.25% ~~0.25~~ 0.25% Adjustments in the Applicable Margins commencing with the Fiscal Quarter ending on or about December 31, 2005 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. (B) As of the Closing Date, the Applicable Margins are as follows: Applicable Revolver Index Margin 0.75 % Applicable Revolver LIBOR Margin 2.25 % Applicable L/C Margin 2.25 % Applicable Unused Line Fee Margin 0.50 % After the Closing Date, the Applicable Margins (other than Applicable Unused Line Fee Margin) shall be adjusted by reference to the following grids: Applicable Revolver Index Margin 0.75 % 1.00 % 1.50 % Applicable Revolver LIBOR Margin 2.25 % 2.50 % 3.00 % Applicable L/C Margin 2.25 % 2.50 % 3.00 % Adjustments in the Applicable Margins (other than Applicable Unused Line Fee Margin) commencing with the Fiscal Quarter ending on or about July 3, 2010 shall be implemented quarterly on a prospective basis, commencing on the first day of the calendar month that begins after the date of delivery to Lenders of the Compliance Certificate delivered to Agent and Lenders pursuant to paragraph (b) of Annex E with respect to a Fiscal Quarter evidencing the need for an adjustment. Concurrently with the delivery of such Compliance Certificate, Borrower shall deliver to Agent and Lenders a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margins. Failure to timely deliver such Compliance Certificate shall, in addition to any other remedy provided for in this Agreement, result in an increase in the Applicable Margins (other than Applicable Unused Line Fee Margin) to the highest level set forth in the foregoing grid, until the date of the delivery of a Compliance Certificate demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, that reduction shall be deferred until the date on which such Event of Default is waived or cured. After the Closing Date, the Applicable Unused Line Fee Margin shall be adjusted as follows: (i) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is equal to or greater than 50% of the average Maximum Amount during such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.375% per annum and (ii) if the average of the daily closing balances of the Revolving Loan and the Swing Line Loan outstanding during the period for which the Fee under Section 1.9(b) is due is less than 50% of the average Maximum Amount for such period, the Applicable Unused Line Fee Margin for such period shall be equal to 0.50% per annum. (b) If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. (c) All computations of Fees calculated on a per annum basis and interest shall be made by Agent on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such interest and Fees are payable. The Index Rate is a floating rate determined for each day. Each determination by Agent of interest rates and Fees hereunder shall be presumptive evidence of the correctness of such rates and Fees. (d) So long as an Event of Default has occurred and is continuing under Section 8.1(a), (h) or (i), or so long as any other Event of Default has occurred and is continuing and at the election of Agent (or upon the written request of Requisite Lenders) confirmed by written notice from Agent to Borrower, the interest rates applicable to the Loans and the Letter of Credit Fees shall be increased ~~to the rate per annum which is determined~~ by ~~adding~~ two ~~percent~~ percentage points (~~2.0~~2%) per annum to above the ~~Applicable Margin then in effect for such Loans (plus~~ highest interest rate on the ~~LIBOR Rate~~ grid of interest or ~~Index Rate, as the case may be) or to~~ the rate of such Fees otherwise applicable hereunder unless Agent or Requisite Lenders elect to impose a smaller increase (the “"Default Rate”"), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall ~~be payable upon demand and shall~~ accrue from the initial date of such Event of Default until that Event of Default is cured or ~~waived~~waived and shall be payable upon demand. (e) Subject to the conditions precedent set forth in Section 2.2, Borrower shall have the option to (i) request that any Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if such conversion is made prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into, a LIBOR Loan must be in a minimum amount of $2,000,000 and integral multiples of $1,000,000 in excess of such amount. Any such election must be made by 11:00 a.m. (Chicago time) on the Third Business Day prior to (1) the date of any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the date on which Borrower wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago time) on the Third Business Day prior to the end of the LIBOR Period with respect thereto (or if a Default or an Event of Default has occurred and is continuing or the additional conditions precedent set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower must make such election by notice to Agent in writing, ~~including~~ by ~~Electronic Transmission~~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 1.5(e). (f) Notwithstanding anything to the contrary set forth in this Section 1.5, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “"Maximum Lawful Rate”"), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate.

Appears in 1 contract

Samples: Credit Agreement (Insteel Industries Inc)

Common use of Interest and Applicable Margins Clause in Contracts