Interest and Letter of Credit Fees. (a) Borrower may only request Revolving Credit Loans with an interest rate determined by reference to the LIBO Rate plus the LIBO Rate Margin. (b) Accrued and unpaid interest on Liquidation Loans shall be payable on the earliest of (i) the first day of each calendar month after the Closing Date; (ii) the occurrence of an Event of Default in consequence of which the Lender elects to accelerate the maturity of all or any portion of the Obligations, or (iii) termination of this Agreement pursuant to the terms hereof. At any time that an Event of Default has occurred and is continuing, Lender shall have the option to convert the interest rate on all outstanding LIBO Rate Loans to the rate then applicable to Base Rate Loans hereunder. In the event that Lender exercises such right of conversion, Borrower shall indemnify, defend, and hold Lender and its Participants harmless against any and all Funding Losses resulting from such conversion in accordance with Section 2.4(i). (c) Borrower shall pay interest to Lender on the Daily Balance of the aggregate outstanding principal amount of all Liquidation Loans at a per annum rate equal to the sum of (i) the Base Rate or LIBO Rate, as applicable to such Liquidation Loan, plus (ii) the applicable Margin. All other Obligations shall bear interest at a per annum rate equal to the Base Rate plus the Margin then applicable to Other Asset Advances. (d) As to each outstanding Letter of Credit, Borrower shall pay Lender a Letter of Credit Fee (in addition to the charges, commissions, fees, and costs set forth in Annex B attached hereto) which shall accrue at a rate equal to the aggregate Letter of Credit Fees applicable to such Letters of Credit times the Daily Balance of the undrawn amount of all outstanding Letters of Credit. (e) Letter of Credit Fees and all other Fees (except the Closing Fee which shall be payable from the proceeds of the first Revolving Credit Advance to be made hereunder) payable hereunder shall be due and payable, in arrears, on the first day of each month at any time that Obligations are outstanding. Borrower hereby authorizes Lender, from time to time, without prior notice to Borrower, to charge interest and fees, all Lender Expenses (as and when incurred), Fees, and all other payments as and when due and payable under any Loan Document (including any amounts due and payable to Xxxxx Fargo or its Affiliates in respect of Bank Products up to the amount of the then extant Bank Products Reserve) to Borrower’s Loan Account, which amounts thereafter shall constitute Advances hereunder and shall accrue interest at the Base Rate plus the applicable Margin applicable for Revolving Credit Advances with an Inventory Advance Rate of 92.5% hereunder. Any interest not paid when due shall be compounded by being charged to Borrower’s Loan Account and shall thereafter constitute Revolving Credit Advances hereunder and shall accrue interest at the Base Rate plus the applicable Margin applicable for Inventory Advances with an Inventory Advance Rate of 92.5% hereunder. The Lender shall provide Borrower with copies of invoices it receives in respect to Lender Expenses upon request. (f) If any payment on any Liquidation 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 and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. (g) All computations of interest shall be made by Lender 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 is payable. Each determination by Lender of an interest rate hereunder shall be conclusive, absent manifest error. In the event the Base Rate is changed from time to time hereafter, the rates of interest hereunder based upon the Base Rate automatically and immediately shall be increased or decreased by an amount equal to such change in the Base Rate. (h) So long as any Event of Default shall have occurred and be continuing, and at the election of Lender after written notice from Lender to Borrower, the interest rates and the Letter of Credit Fees applicable to each of the Liquidation Loans shall be increased by two percent (2%) per annum above the rates of interest or the Letter of Credit Fees otherwise applicable hereunder (“Default Rate”), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall accrue from the initial date of such Event of Default until that Event of Default is cured or waived and shall be payable upon demand. (i) Notwithstanding anything to the contrary set forth in this Section 2.4, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Lender is equal to the total interest 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 2.4(a) through (e) above, unless and until the rate of interest again exceeds the Maximum Lawful Rate, and at that time this paragraph shall again apply. In no event shall the total interest received by Lender pursuant to the terms hereof exceed the amount which 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 2.4(h), a court of competent jurisdiction shall finally determine that Lender has received interest hereunder in excess of the Maximum Lawful Rate, Lender shall, to the extent permitted by applicable law, promptly apply such excess in the order specified in Section 2.8 and thereafter shall refund any excess to Borrower or as a court of competent jurisdiction may otherwise order. (j) In connection with each LIBO Rate Loan, Borrower shall indemnify, defend, and hold Lender harmless against any loss, cost, or expense incurred by Lender as a result of (a) the payment of any principal of any LIBO Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any LIBO Rate Loan other than on the last day of the Interest Period applicable thereto, or (c) the failure to borrow, convert, continue or prepay any LIBO Rate Loan on the date specified in any Notice of Revolving Credit Advance delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”). Funding Losses shall, with respect to Lender, be deemed to equal the amount determined by Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such LIBO Rate Loan had such event not occurred, at the LIBO Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period therefor), minus (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Lender delivered to Borrower setting forth any amount or amounts that Lender is entitled to receive pursuant to this Section shall be conclusive absent manifest error. (k) Borrower may prepay LIBO Rate Loans at any time; provided, however, that in the event that LIBO Rate Loans are prepaid on any date that is not the last day of the Interest Period applicable thereto, including as a result of any automatic prepayment through the required application by Lender of Proceeds in accordance with Section 2.8 or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof, Borrower shall indemnify, defend, and hold Lender and its Participants harmless against any and all Funding Losses in accordance with Section 2.4(i). (l) The following provisions shall apply to each LIBOR Loan: (i) The LIBO Rate may be adjusted by Lender on a prospective basis to take into account any additional or increased costs to the Lender of maintaining or obtaining any eurodollar deposits or increased costs due to changes in applicable law occurring subsequent to the commencement of the then applicable Interest Period, including changes in tax laws (except changes of general applicability in corporate income tax laws) and changes in the reserve requirements imposed by the Board of Governors of the Federal Reserve System (or any successor), excluding the Reserve Percentage, which additional or increased costs would increase the cost of funding loans bearing interest at the LIBO Rate. In any such event, the Lender shall give Borrower notice of such a determination and adjustment and, upon its receipt of such notice from the Lender, Borrower may, by notice to the Lender (y) require the Lender to furnish to Borrower a statement setting forth the basis for adjusting such LIBO Rate and the method for determining the amount of such adjustment, or (z) repay the LIBO Rate Loans with respect to which such adjustment is made (together with any amounts due under Section 2.4(i) above). (ii) In the event that any change in market conditions or any law, regulation, treaty, or directive, or any change therein or in the interpretation of application thereof, shall at any time after the date hereof, in the reasonable opinion of the Lender, make it unlawful or impractical for the Lender to fund or maintain LIBOR Rate Loans or to continue such funding or maintaining, or to determine or charge interest rates at the LIBO Rate, the Lender shall give notice of such changed circumstances to Borrower and in the case of any LIBO Rate Loans that are outstanding, the date specified in the Lender’s notice shall be deemed to be the last day of the Interest Period of such LIBO Rate Loans, and interest upon the LIBO Rate Loans shall accrue interest at the rate that would be applicable to a Base Rate Loan plus the applicable Margin. (iii) Anything to the contrary contained herein notwithstanding, neither the Lender nor any Participant is required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues at the LIBO Rate. The provisions of this clause shall apply as if the Lender or any Participant had match funded any Obligation as to which interest is accruing at the LIBO Rate by acquiring eurodollar deposits for each Interest Period in the amount of the LIBO Rate Loans.
Appears in 1 contract
Interest and Letter of Credit Fees. (a) Borrower Borrowers may only request Revolving Credit Loans Advances with an interest rate determined by reference to the LIBO Rate plus the LIBO Rate applicable Margin.
(b) Accrued and unpaid interest on Liquidation Loans Revolving Credit Advances shall be payable on the earliest of (i) on the first day of each calendar month after the Closing Date; (ii) upon the occurrence of an Event of Default in consequence of which the Lender elects to accelerate the maturity of all or any portion of the Obligations, or and (iii) upon termination of this Agreement pursuant to the terms hereof. At any time that an Event of Default has occurred and is continuing, Lender shall have the option to convert the interest rate on all outstanding LIBO Rate Loans to a rate equal to the rate then applicable to Base Rate Loans hereunderplus the applicable Margin. In the event that Lender exercises such right of conversion, Borrower Borrowers shall jointly and severally indemnify, defend, and hold Lender and its Participants Indemnified Persons harmless against any and all Funding Losses resulting from such conversion in accordance with Section 2.4(i2.4(j).
(c) Borrower Borrowers shall pay interest to Lender on the Daily Balance of the aggregate outstanding principal amount of all Liquidation Loans Revolving Credit Advances at a per annum rate equal to the sum of (i) the Base Rate or LIBO Rate, as applicable to such Liquidation LoanRevolving Credit Advances, plus (ii) the applicable Margin. All other Obligations shall bear interest at a per annum rate equal to the Base Rate plus the Margin then applicable to Other Asset Advances.
(d) As to each outstanding Letter of Credit, Borrower Borrowers shall pay Lender a Letter of Credit Fee (in addition to the charges, commissions, fees, and costs set forth in Annex B attached hereto) which shall accrue at a the applicable rate equal set forth in Annex B attached hereto multiplied by the maximum amount available to be drawn under the aggregate applicable Letter of Credit Fees applicable to such Letters of Credit times the Daily Balance of the undrawn amount of all outstanding Letters of Credit.
(e) Letter of Credit Fees and all other Fees (except the Closing Fee which shall be payable from in accordance with the proceeds of the first Revolving Credit Advance to be made hereunderFee Letter) payable hereunder shall be due and payable, in arrears, on the first day of each month at any time that Obligations are outstanding. Each Borrower hereby authorizes Lender, from time to time, without prior notice to any Borrower, to charge interest and fees, all Lender Expenses (as and when incurred), Fees, and all other payments as and when due and payable under any Loan Document (including any amounts due and payable to Xxxxx Fargo Lender or its Affiliates in respect of Bank Products up to the amount of the then extant Bank Products ReserveProducts) to Borrower’s Borrowers’ Loan Account, which amounts thereafter shall constitute Revolving Credit Advances hereunder and shall accrue interest at the Base Rate plus the applicable Margin applicable for Revolving Credit Advances with an Inventory Advance Rate of 92.5% hereunder. Any interest not paid when due shall be compounded by being charged to Borrower’s Borrowers’ Loan Account and shall thereafter constitute Revolving Credit Advances hereunder and shall accrue interest at the Base Rate plus the applicable Margin applicable for Inventory Advances with an Inventory Advance Rate of 92.5% hereunder. The Lender shall provide Borrower Borrowers with copies of invoices it receives in respect to Lender Expenses upon request.
(f) If any payment on any Liquidation Loan Revolving Credit Advances becomes due and payable on a day other than a Business Day, subject with respect to LIBO Rate Loans to clauses (c)-(e) of the definition of Interest Period, the maturity thereof will be extended to the next succeeding Business Day and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(g) All computations of interest shall be made by Lender 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 is payable. Each determination by Lender of an interest rate hereunder shall be conclusive, absent manifest error. In the event the Base Rate is changed from time to time hereafter, the rates of interest hereunder based upon the Base Rate automatically and immediately shall be increased or decreased by an amount equal to such change in the Base Rate.
(h) So long as any Event of Default shall have occurred and be continuing, and at the election of Lender after written notice from Lender to BorrowerBorrowers, the interest rates and the Letter of Credit Fees applicable to each of the Liquidation Loans Revolving Credit Advances, Letters of Credit, and other Obligations shall be increased by two percent (2%) per annum above the rates of interest or the Letter of Credit Fees otherwise applicable hereunder (“Default Rate”), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall accrue from the initial date of such Event of Default until that Event of Default is cured or waived and shall be payable upon demand.
(i) Notwithstanding anything to the contrary set forth in this Section 2.4, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law 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, 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 Lender is equal to the total interest which would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of interest and in the manner provided in Sections 2.4(a) through (e) above, unless and until the rate of interest again exceeds the Maximum Lawful Rate, and at that time this paragraph shall again apply. In no event shall the total interest received by Lender pursuant to the terms hereof exceed the amount which 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 2.4(h2.4(i), a court of competent jurisdiction shall finally determine that Lender has received interest hereunder in excess of the Maximum Lawful Rate, Lender shall, to the extent permitted by applicable lawLaw, promptly apply such excess in the order specified in Section 2.8 and thereafter shall refund any excess to Borrower Borrowers or as a court of competent jurisdiction may otherwise order.
(j) In connection with each LIBO Rate Loan, Borrower Borrowers shall jointly and severally indemnify, defend, and hold Lender harmless against any loss, cost, or expense incurred by Lender as a result of (a) the payment of any principal of any LIBO Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any LIBO Rate Loan other than on the last day of the Interest Period applicable thereto, or (c) the failure to borrow, convert, continue or prepay any LIBO Rate Loan on the date specified in any Notice of Revolving Credit Advance delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”). Funding Losses shall, with respect to Lender, be deemed to equal the amount reasonably determined by Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such LIBO Rate Loan had such event not occurred, at the LIBO Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period therefor), minus (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Lender delivered to Borrower setting forth any amount or amounts that Lender is entitled to receive pursuant to this Section shall be conclusive absent manifest error.
(k) A Borrower may prepay LIBO Rate Loans at any time; provided, however, that in the event that LIBO Rate Loans are prepaid on any date that is not the last day of the Interest Period applicable thereto, including as a result of any automatic prepayment through the required application by Lender of Proceeds in accordance with Section 2.8 or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof, Borrower Borrowers shall jointly and severally indemnify, defend, and hold Lender and its Participants Indemnified Persons harmless against any and all Funding Losses in accordance with Section 2.4(i2.4(j).
(l) The following provisions shall apply to each LIBOR Loan:
(i) The LIBO Rate may be adjusted by Lender on a prospective basis to take into account any additional or increased costs to the Lender of maintaining or obtaining any eurodollar deposits or increased costs due to changes in applicable law Law occurring subsequent to the commencement of the then applicable Interest Period, including changes in tax laws (except changes of general applicability in corporate income tax laws) and changes in the reserve requirements imposed by the Board of Governors of the Federal Reserve System (or any successor), excluding the Reserve Percentage, which additional or increased costs would increase the cost of funding loans bearing interest at the LIBO Rate. In any such event, the Lender shall give Borrower Borrowers notice of such a determination and adjustment and, upon its receipt of such notice from the Lender, Borrower Borrowers may, by notice to the Lender (y) require the Lender to furnish to Borrower Borrowers a statement setting forth the basis for adjusting such LIBO Rate and the method for determining the amount of such adjustment, or (z) repay the LIBO Rate Loans with respect to which such adjustment is made (together with any amounts due under Section 2.4(i2.4(j) above).
(ii) In the event that any change in market conditions or any lawLaw, regulation, treaty, or directive, or any change therein or in the interpretation of application thereof, shall at any time after the date hereof, in the reasonable opinion of the Lender, make it unlawful or impractical for the Lender to fund or maintain LIBOR LIBO Rate Loans or to continue such funding or maintaining, or to determine or charge interest rates at the LIBO Rate, the Lender shall give notice of such changed circumstances to Borrower Borrowers and in the case of any LIBO Rate Loans that are outstanding, the date specified in the Lender’s notice shall be deemed to be the last day of the Interest Period of such LIBO Rate Loans, and interest upon the LIBO Rate Loans shall accrue interest at a rate equal to the rate that would be applicable to a Base Rate Loan plus the applicable Margin.
(iii) Anything to the contrary contained herein notwithstanding, neither the Lender nor any Participant is not required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues at the LIBO Rate. The provisions of this clause shall apply as if the Lender or any Participant had match funded any Obligation as to which interest is accruing at the LIBO Rate by acquiring eurodollar deposits for each Interest Period in the amount of the LIBO Rate Loans.
Appears in 1 contract
Interest and Letter of Credit Fees. (a) Borrower may only request Revolving Credit Loans with an comprising each Prime Rate Borrowing shall bear interest rate determined by reference to at the LIBO Prime Rate plus the LIBO Applicable Margin. Loans comprising each LIBOR Floating Rate Borrowing shall bear interest at the LIBOR Floating Rate plus the Applicable Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBOR Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.
(c) Notwithstanding the foregoing, upon and during the continuance of any Event of Default, all Loans and other amounts due hereunder (other than interest) shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, [***] plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount (other than interest and Facility Fees), [***] plus the rate applicable to Prime Rate Loans as provided in paragraph (a) of this Section.
(d) Accrued and unpaid interest on Liquidation Loans each Loan shall be payable in arrears on each Interest Payment Date for such Loan and upon termination of the Commitment; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of a Floating Rate Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the earliest date of (i) the first day of each calendar month after the Closing Date; (ii) the occurrence of an Event of Default in consequence of which the Lender elects to accelerate the maturity of all such repayment or any portion of the Obligations, or prepayment and (iii) termination in the event of this Agreement pursuant any conversion of any Eurodollar Loan prior to the terms hereof. At any time that an Event end of Default has occurred and is continuingthe current Interest Period therefor, Lender accrued interest on such Loan shall have the option to convert the interest rate on all outstanding LIBO Rate Loans to the rate then applicable to Base Rate Loans hereunder. In the event that Lender exercises such right of conversion, Borrower shall indemnify, defend, and hold Lender and its Participants harmless against any and all Funding Losses resulting from such conversion in accordance with Section 2.4(i).
(c) Borrower shall pay interest to Lender be payable on the Daily Balance effective date of the aggregate outstanding principal amount of all Liquidation Loans at a per annum rate equal to the sum of (i) the Base Rate or LIBO Rate, as applicable to such Liquidation Loan, plus (ii) the applicable Margin. All other Obligations shall bear interest at a per annum rate equal to the Base Rate plus the Margin then applicable to Other Asset Advances.
(d) As to each outstanding Letter of Credit, Borrower shall pay Lender a Letter of Credit Fee (in addition to the charges, commissions, fees, and costs set forth in Annex B attached hereto) which shall accrue at a rate equal to the aggregate Letter of Credit Fees applicable to such Letters of Credit times the Daily Balance of the undrawn amount of all outstanding Letters of Creditconversion.
(e) Letter of Credit Fees All interest and all other Fees (except the Closing Fee which shall be payable from the proceeds of the first Revolving Credit Advance to be made hereunder) payable fees hereunder shall be due and payable, in arrears, on the first day of each month at any time that Obligations are outstanding. Borrower hereby authorizes Lender, from time to time, without prior notice to Borrower, to charge interest and fees, all Lender Expenses (as and when incurred), Fees, and all other payments as and when due and payable under any Loan Document (including any amounts due and payable to Xxxxx Fargo or its Affiliates in respect of Bank Products up to the amount of the then extant Bank Products Reserve) to Borrower’s Loan Account, which amounts thereafter shall constitute Advances hereunder and shall accrue interest at the Base Rate plus the applicable Margin applicable for Revolving Credit Advances with an Inventory Advance Rate of 92.5% hereunder. Any interest not paid when due shall be compounded by being charged to Borrower’s Loan Account and shall thereafter constitute Revolving Credit Advances hereunder and shall accrue interest at the Base Rate plus the applicable Margin applicable for Inventory Advances with an Inventory Advance Rate of 92.5% hereunder. The Lender shall provide Borrower with copies of invoices it receives in respect to Lender Expenses upon request.
(f) If any payment on any Liquidation 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 and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(g) All computations of interest shall be made by Lender computed on the basis of a three hundred year of 360 days and sixty (360) day year, in each case shall be payable for the actual number of days occurring in elapsed (including the period for which such interest is payablefirst day but excluding the last day). Each determination by Lender of an interest rate hereunder shall be conclusive, absent manifest error. In the event the Base Rate is changed from time to time hereafter, the rates of interest hereunder based upon the Base Rate automatically and immediately shall be increased or decreased by an amount equal to such change in the Base Rate.
(h) So long as any Event of Default shall have occurred and be continuing, and at the election of Lender after written notice from Lender to Borrower, the interest rates and the Letter of Credit Fees The applicable to each of the Liquidation Loans shall be increased by two percent (2%) per annum above the rates of interest or the Letter of Credit Fees otherwise applicable hereunder (“Default Rate”), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall accrue from the initial date of such Event of Default until that Event of Default is cured or waived and shall be payable upon demand.
(i) Notwithstanding anything to the contrary set forth in this Section 2.4, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Prime Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Lender is equal to the total interest 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. ThereafterLIBOR Floating Rate, interest hereunder shall be paid at the rate(s) of interest and in the manner provided in Sections 2.4(a) through (e) above, unless and until the rate of interest again exceeds the Maximum Lawful Adjusted LIBOR Rate, and at that time this paragraph shall again apply. In no event shall the total interest received by Lender pursuant to the terms hereof exceed the amount which 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 LIBOR Rate is calculated pursuant to this paragraph, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided determined by the number of days in the year in which such calculation is made. If, notwithstanding the provisions of this Section 2.4(h), a court of competent jurisdiction shall finally determine that Lender has received interest hereunder in excess of the Maximum Lawful Rate, Lender shall, to the extent permitted by applicable law, promptly apply such excess in the order specified in Section 2.8 and thereafter shall refund any excess to Borrower or as a court of competent jurisdiction may otherwise order.
(j) In connection with each LIBO Rate Loan, Borrower shall indemnify, defendLender, and hold Lender harmless against any loss, cost, or expense incurred by Lender as a result of (a) the payment of any principal of any LIBO Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any LIBO Rate Loan other than on the last day of the Interest Period applicable thereto, or (c) the failure to borrow, convert, continue or prepay any LIBO Rate Loan on the date specified in any Notice of Revolving Credit Advance delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”). Funding Losses shall, with respect to Lender, be deemed to equal the amount determined by Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such LIBO Rate Loan had such event not occurred, at the LIBO Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period therefor), minus (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Lender delivered to Borrower setting forth any amount or amounts that Lender is entitled to receive pursuant to this Section determination shall be conclusive absent manifest error.
(kf) Borrower may prepay LIBO Rate shall pay (i) to Lender in advance at the time of issuance, extension, amendment, or renewal of each Letter of Credit a fee equal to the Applicable Margin per annum that applies to Eurodollar Loans at on the face amount of each such Letter of Credit (provided that the Letter of Credit fee for each Letter of Credit will be increased to the amount if, any, required to cause the total Letter of Credit fee for each Letter of Credit to be not less than [***]), and (ii) to Lender fees separately agreed upon by Borrower and Lender with respect to issuing, amending, renewing or extending any timeLetter of Credit, the currency in which such Letter of Credit is denominated, or processing drawings thereunder; provided, however, that upon notice to Borrower from Lender upon and during the continuance of an Event of Default (which notice Lender may deliver in the event that LIBO Rate Loans are prepaid on any date that is not the last day of the Interest Period applicable thereto, including as a result of any automatic prepayment through the required application by Lender of Proceeds in accordance with Section 2.8 or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof, Borrower shall indemnify, defendits discretion), and hold Lender and its Participants harmless against any and all Funding Losses in accordance with Section 2.4(i).
(l) The following provisions shall apply to each LIBOR Loan:
continuing for so long as an Event of Default exists, the Letter of Credit fee payable under clause (i) The LIBO Rate may be adjusted by Lender on a prospective basis to take into account any additional or increased costs to the Lender of maintaining or obtaining any eurodollar deposits or increased costs due to changes in applicable law occurring subsequent to the commencement of the then applicable Interest Period, including changes in tax laws (except changes of general applicability in corporate income tax laws) and changes in the reserve requirements imposed by the Board of Governors of the Federal Reserve System (or any successor), excluding above, shall be increased to a rate per annum equal to [***] plus the Reserve Percentage, which additional or increased costs would increase the cost of funding loans bearing interest at the LIBO RateApplicable Margin per annum that applies to Eurodollar Loans. In any such event, the Lender shall give Borrower notice of such a determination and adjustment and, upon its receipt of such notice from the Lender, Borrower may, by notice to the Lender (y) require the Lender to furnish to Borrower a statement setting forth the basis for adjusting such LIBO Rate and the method for determining the amount of such adjustment, or (z) repay the LIBO Rate Loans Any fees with respect to which such adjustment is made (together with any amounts due under Section 2.4(i) above).
(ii) In Letters of Credit other than the event that any change in market conditions or any law, regulation, treaty, or directive, or any change therein or in the interpretation Letter of application thereof, shall at any time Credit fee will be payable within 10 days after the date hereof, in the reasonable opinion of the Lender, make it unlawful or impractical for the Lender to fund or maintain LIBOR Rate Loans or to continue such funding or maintaining, or to determine or charge interest rates at the LIBO Rate, the Lender shall give notice of such changed circumstances to Borrower and in the case of any LIBO Rate Loans that are outstanding, the date specified in the Lender’s notice shall be deemed to be the last day of the Interest Period of such LIBO Rate Loans, and interest upon the LIBO Rate Loans shall accrue interest at the rate that would be applicable to a Base Rate Loan plus the applicable Margin.
(iii) Anything to the contrary contained herein notwithstanding, neither the Lender nor any Participant is required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues at the LIBO Ratedemand. The provisions Letter of this clause shall apply as if Credit fee will be computed on the Lender or any Participant had match funded any Obligation as to which interest is accruing at the LIBO Rate by acquiring eurodollar deposits for each Interest Period in the amount basis of the LIBO Rate Loansa year of 360 days.
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Interest and Letter of Credit Fees. (a) Borrower may only request Revolving Credit Loans with an interest rate determined by reference to the LIBO Rate plus the LIBO Rate Margin.
(b) Accrued and unpaid interest on Liquidation Loans Revolving Credit Advances shall be payable on the earliest of (i) the first day of each calendar month after the Closing Date; (ii) the occurrence of an Event of Default in consequence of which the Lender elects to accelerate the maturity of all or any portion of the Obligations, or (iii) termination of this Agreement pursuant to the terms hereof. At any time that an Event of Default has occurred and is continuing, Lender shall have the option to convert the interest rate on all outstanding LIBO Rate Loans to the rate then applicable to Base Rate Loans hereunder. In the event that Lender exercises such right of conversion, Borrower shall indemnify, defend, and hold Lender and its Participants harmless against any and all Funding Losses resulting from such conversion in accordance with Section 2.4(i).
(c) Borrower shall pay interest to Lender on the Daily Balance of the aggregate outstanding principal amount of all Liquidation Loans Revolving Credit Advances at a per annum rate equal to the sum of (i) the Base Rate or LIBO Rate, as applicable to such Liquidation LoanRevolving Credit Advances, plus (ii) the applicable Margin. All other Obligations shall bear interest at a per annum rate equal to the Base Rate plus the Margin then applicable to Other Asset Advances.
(d) As to each outstanding Letter of Credit, Borrower shall pay Lender a Letter of Credit Fee (in addition to the charges, commissions, fees, and costs set forth in Annex B attached hereto) which shall accrue at a rate equal to the aggregate Letter of Credit Fees applicable to such Letters of Credit times the Daily Balance of the undrawn amount of all outstanding Letters of Credit.
(e) Letter of Credit Fees and all other Fees (except the Closing Fee which shall be payable from the proceeds of the first Revolving Credit Advance to be made hereunder) payable hereunder shall be due and payable, in arrears, on the first day of each month at any time that Obligations are outstanding. Borrower hereby authorizes Lender, from time to time, without prior notice to Borrower, to charge interest and fees, all Lender Expenses (as and when incurred), Fees, and all other payments as and when due and payable under any Loan Document (including any amounts due and payable to Xxxxx Fargo or its Affiliates in respect of Bank Products up to the amount of the then extant Bank Products Reserve) to Borrower’s Loan Account, which amounts thereafter shall constitute Advances hereunder and shall accrue interest at the Base Rate plus the applicable Margin applicable for Revolving Credit Advances with an Inventory Advance Rate of 92.5% hereunder. Any interest not paid when due shall be compounded by being charged to Borrower’s Loan Account and shall thereafter constitute Revolving Credit Advances hereunder and shall accrue interest at the Base Rate plus the applicable Margin applicable for Inventory Advances with an Inventory Advance Rate of 92.5% hereunder. The Lender shall provide Borrower with copies of invoices it receives in respect to Lender Expenses upon request.
(f) If any payment on any Liquidation Loan Revolving Credit Advances becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(g) All computations of interest shall be made by Lender 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 is payable. Each determination by Lender of an interest rate hereunder shall be conclusive, absent manifest error. In the event the Base Rate is changed from time to time hereafter, the rates of interest hereunder based upon the Base Rate automatically and immediately shall be increased or decreased by an amount equal to such change in the Base Rate.
(h) So long as any Event of Default shall have occurred and be continuing, and at the election of Lender after written notice from Lender to Borrower, the interest rates and the Letter of Credit Fees applicable to each of the Liquidation Loans Revolving Credit Advances, Letters of Credit, and other Obligations shall be increased by two percent (2%) per annum above the rates of interest or the Letter of Credit Fees otherwise applicable hereunder (“Default Rate”), and all outstanding Obligations shall bear interest at the Default Rate applicable to such Obligations. Interest and Letter of Credit Fees at the Default Rate shall accrue from the initial date of such Event of Default until that Event of Default is cured or waived and shall be payable upon demand.
(i) Notwithstanding anything to the contrary set forth in this Section 2.4, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law 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, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Lender is equal to the total interest 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 2.4(a) through (e) above, unless and until the rate of interest again exceeds the Maximum Lawful Rate, and at that time this paragraph shall again apply. In no event shall the total interest received by Lender pursuant to the terms hereof exceed the amount which 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 2.4(h), a court of competent jurisdiction shall finally determine that Lender has received interest hereunder in excess of the Maximum Lawful Rate, Lender shall, to the extent permitted by applicable lawLaw, promptly apply such excess in the order specified in Section 2.8 and thereafter shall refund any excess to Borrower or as a court of competent jurisdiction may otherwise order.
(j) In connection with each LIBO Rate Loan, Borrower shall indemnify, defend, and hold Lender harmless against any loss, cost, or expense incurred by Lender as a result of (a) the payment of any principal of any LIBO Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any LIBO Rate Loan other than on the last day of the Interest Period applicable thereto, or (c) the failure to borrow, convert, continue or prepay any LIBO Rate Loan on the date specified in any Notice of Revolving Credit Advance delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”). Funding Losses shall, with respect to Lender, be deemed to equal the amount determined by Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such LIBO Rate Loan had such event not occurred, at the LIBO Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period therefor), minus (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Lender delivered to Borrower setting forth any amount or amounts that Lender is entitled to receive pursuant to this Section shall be conclusive absent manifest error.
(k) Borrower may prepay LIBO Rate Loans at any time; provided, however, that in the event that LIBO Rate Loans are prepaid on any date that is not the last day of the Interest Period applicable thereto, including as a result of any automatic prepayment through the required application by Lender of Proceeds in accordance with Section 2.8 or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof, Borrower shall indemnify, defend, and hold Lender and its Participants harmless against any and all Funding Losses in accordance with Section 2.4(i).
(l) The following provisions shall apply to each LIBOR Loan:
(i) The LIBO Rate may be adjusted by Lender on a prospective basis to take into account any additional or increased costs to the Lender of maintaining or obtaining any eurodollar deposits or increased costs due to changes in applicable law Law occurring subsequent to the commencement of the then applicable Interest Period, including changes in tax laws (except changes of general applicability in corporate income tax laws) and changes in the reserve requirements imposed by the Board of Governors of the Federal Reserve System (or any successor), excluding the Reserve Percentage, which additional or increased costs would increase the cost of funding loans bearing interest at the LIBO Rate. In any such event, the Lender shall give Borrower notice of such a determination and adjustment and, upon its receipt of such notice from the Lender, Borrower may, by notice to the Lender (y) require the Lender to furnish to Borrower a statement setting forth the basis for adjusting such LIBO Rate and the method for determining the amount of such adjustment, or (z) repay the LIBO Rate Loans with respect to which such adjustment is made (together with any amounts due under Section 2.4(i) above).
(ii) In the event that any change in market conditions or any lawLaw, regulation, treaty, or directive, or any change therein or in the interpretation of application thereof, shall at any time after the date hereof, in the reasonable opinion of the Lender, make it unlawful or impractical for the Lender to fund or maintain LIBOR Rate Loans or to continue such funding or maintaining, or to determine or charge interest rates at the LIBO Rate, the Lender shall give notice of such changed circumstances to Borrower and in the case of any LIBO Rate Loans that are outstanding, the date specified in the Lender’s notice shall be deemed to be the last day of the Interest Period of such LIBO Rate Loans, and interest upon the LIBO Rate Loans shall accrue interest at the rate that would be applicable to a Base Rate Loan plus the applicable Margin.
(iii) Anything to the contrary contained herein notwithstanding, neither the Lender nor any Participant is required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues at the LIBO Rate. The provisions of this clause shall apply as if the Lender or any Participant had match funded any Obligation as to which interest is accruing at the LIBO Rate by acquiring eurodollar deposits for each Interest Period in the amount of the LIBO Rate Loans.
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