Changed Circumstances. (a) Subject to the provisions of this Agreement, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing. (b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, in good faith (which determination shall be conclusive), prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured. (c) If, after the date hereof, the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured. (d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur. (e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation). (f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest error.
Appears in 2 contracts
Samples: Loan and Security Agreement (Mothers Work Inc), Loan and Security Agreement (Mothers Work Inc)
Changed Circumstances. In the event that:
(a) Subject to on any date on which the provisions of this Agreement, Applicable LIBOR Rate would otherwise be set the Borrowers Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of interest to be applicable to LIBOR Pricing Option has been made impracticable or unlawful by (A) the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits occurrence of a comparable amount for contingency that materially and adversely affects the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction ofLondon interbank market, or (B) compliance by any change Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(ii) the LIBOR Rate shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or no longer represent the effective cost to the Lenders for U.S. dollar deposits in or the London interbank market, as applicable for the account of or loans bydeposits in which they regularly participate; then, or any other acquisition of funds or disbursements byand in such event, the Agent or shall forthwith so notify the Lenders; (B) subject Borrower thereof. Until the AgentAgent notifies the Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to and the Agent or to allow election by the Lenders Borrower of principal or interest due from a LIBOR Pricing Option shall be suspended. If at the Borrowers to time the Agent or so notifies the Lenders hereunder (other than a change in Borrower, the taxation of the overall net income of Borrower has previously given the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest Pricing Notice with respect to a LIBOR Pricing Option, but the Index Loans free LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and clear of, and without deduction for, any Taxesbe of no force or effect. If (A) the Agent or any Lender Upon such date as shall be subject to any Tax specified in respect of any Index Loans or any part thereof or, such notice (B) which shall not be earlier than the Borrowers shall be required to withhold or deduct any Tax from any date such amountnotice is given), the Index LIBOR Pricing Option with respect to all LIBOR Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax terminated and the Borrowers Borrower shall provide the Agent or pay all interest due on such Lender with a statement detailing the amount of LIBOR Rate Loans and any such Tax actually amounts required to be paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers pursuant to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorSection 4.3.
Appears in 2 contracts
Samples: Credit Agreement (Boston Celtics Limited Partnership), Credit Agreement (Boston Celtics Limited Partnership Ii /De/)
Changed Circumstances. In the event that:
(ai) Subject to on any date on which the provisions of this Agreement, LIBOR Rate would otherwise be set the Borrowers Bank shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, reasonably determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate LIBOR Base, or
(ii) at any time the Bank shall have reasonably determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of interest or conversion of any Loan to be applicable to the Revolving Credit Loans requested a LIBOR Loan has been made impracticable or unlawful by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and interbank market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, or any change Bank in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any governmental authority request or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day directive of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders)such governmental authority, the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall law (A) imposein any such case, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders"Legal Impediment"); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).or
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers LIBOR Rate shall no longer represent the effective cost to the Bank for United States dollar deposits in the interbank market for deposits in which it regularly participates; or
(C) that U.S. dollar deposits in immediately available funds in an amount approximately equal to the outstanding principal balance of the Line of Credit are not readily available to the Bank's Eurodollar Office for delivery on the first day of any Interest Period; then, and in any such event, the Bank shall forthwith so notify the Company by facsimile notice at least one (1) day prior to (i) the date that the LIBOR Rate is to be set, (ii) the commencement date of the applicable Interest Period or (iii) the occurrence of the applicable event, and the Interest Rate shall become the Prime Rate and shall remain the Prime Rate until the Bank determines and so notifies the Company that the circumstances giving rise to such notice no longer apply. Until the Bank notifies the Company that the circumstances giving rise to such notice no longer apply, the obligation of the Bank to allow selection by the Company of a LIBOR Loan (during the occurrence of such circumstances, referred to as "Affected Loans") shall be required to withhold or deduct any Tax from any such amountsuspended. If at the time the Bank so notifies the Company, the Index Rate applicable Company has previously given the Bank a Notice of Borrowing or a Notice of Continuation or Conversion with respect to one or more Affected Loans but such Index Loans borrowing or conversion has not yet gone into effect, such notification shall be adjusted by the Administrative Agent or such Lender deemed to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax be void and the Borrowers shall provide the Agent Company may only borrow or such Lender with convert to a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest errorPrime Rate Loan. If after any such adjustment any part as a result of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lendera Legal Impediment, the Agent or Bank shall incur Breakage Costs in converting from a LIBOR Loan, then the Company shall pay all such Lender, as applicable, shall reimburse the Borrowers Breakage Costs to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis Bank promptly upon its demand therefor shall be conclusive absent manifest errorfor its account.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Meditrust), Revolving Credit Agreement (Meditrust Corp)
Changed Circumstances. (a) Subject to The Lender may give the provisions Borrower notice of this Agreement, the Borrowers occurrence of the following:
(i) The Lender shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive)) on any day on which the rate for a Eurodollar Loan would otherwise be set, prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(cii) If, after The Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(A) The continuation of or conversion of any Revolving Credit Loan to a Eurodollar Loan has been made impracticable or unlawful by the date hereof, occurrence of a contingency that materially and adversely affects the introduction of, applicable market or any change compliance by the Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; ).
(B) subject The indices on which the Agent, interest rates for Eurodollar Loans are based shall no longer represent the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or Lender for U.S. dollar deposits in the Lenders interbank market for deposits in which it regularly participates.
(b) In the event that the Lender gives the Borrower notice of making or maintaining an occurrence described in Section 2-21(a), then, until the Index Lender notifies the Borrower that the circumstances giving rise to such notice no longer apply:
(i) The obligation of the Lender to make Eurodollar Loans of the type affected by such changed circumstances or to reduce permit the amount of principal or Borrower to select the affected interest received by rate as otherwise applicable to any Revolving Credit Loans shall be suspended.
(ii) Any notice which the Agent or Lenders hereunderBorrower had given the Lender with respect to any Eurodollar Loan, then the Borrowers shall pay time for action with respect to which has not occurred prior to the Agent or Lender’s having given notice pursuant to Section 2-21(a), shall be deemed to be a request for a Base Rate Loan.
(c) Notwithstanding the Lendersforegoing, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time Lender agrees to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and so long as such efforts would not be disadvantageous to it, in its reasonable discretion, in any legal, economic or regulatory manner) to designate a different lending office for if the Liabilities if making of such designation will avoid would allow the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers its lending office to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorcontinue to make Eurodollar Loans.
Appears in 2 contracts
Samples: Loan and Security Agreement (Aeropostale Inc), Loan and Security Agreement (Aeropostale Inc)
Changed Circumstances. (a) Subject to In the provisions of this Agreement, event that:
(i) on any date on which the Borrowers Eurodollar Rate would otherwise be set the Lender shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate Eurodollar Rate, as the case may be, or
(ii) at any time the Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of, or conversion of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited any Loan to, official reserve requirements required a Eurodollar Loan has been made impracticable or unlawful by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and interbank eurodollar market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, or any change in Lender with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(B) the Eurodollar Rate shall no longer represent the effective cost to the Lender for United States dollar deposits in the interbank eurodollar market; then, and in any such event, the Lender shall promptly so notify the Borrower thereof in writing. Until the Lender notifies the Borrower that the circumstances giving rise to such notice no longer apply, the Lender’s obligation to allow selection by the Borrower of the type of Loan affected by the contingencies described in this Section 2.11(a) (herein called “Affected Loans”) shall be suspended. If at the time the Lender so notifies the Borrower, the Borrower has previously given the Lender a Notice of Borrowing or Conversion with respect to one or more Affected Loans but such Loans have not yet gone into effect, the Borrower shall have been deemed to have requested that such Loans be made or converted, as applicable, to Base Rate Loans. Upon such date as shall be specified in such notice from the Lender (Awhich shall not be earlier than the date such notice is given) imposethe Borrower shall, modify with respect to the outstanding Affected Loans, be deemed to have converted such Affected Loans to Base Rate Loans, but shall remain obligated to pay any amounts required to be paid pursuant to Section 2.16.
(b) In case any law, regulation, treaty or deem official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law), in each case, effective after the date hereof:
(i) subjects the Lender to any Tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrower or otherwise with respect to the transactions contemplated hereby (except for Taxes imposed by way of withholding or deduction, which shall be governed solely and exclusively by Sections 2.21 and 2.22), or
(ii) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, the Lender (other than such requirements as are already included in the determination of the Eurodollar Rate), or
(iii) imposes upon the Lender any other condition with respect to its performance under this Agreement or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereofLoan Document, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to the Agent Lender, reduce the income receivable by the Lender or impose any expense upon the Lenders of making or maintaining the Index Lender with respect to any Loans or any payments made under or with respect to reduce the amount Letters of principal or interest received by Credit, the Agent or Lenders hereunder, then Lender shall promptly notify the Borrowers shall Borrower thereof. The Borrower agrees to pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation increase in cost, reduction in income or additional expense as and will notwhen such cost, in reduction or expense is incurred or determined, upon presentation by the reasonable opinion Lender of a written statement of such Lender (includingamount and setting forth in reasonable detail the Lender’s calculation thereof, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender which statement shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax deemed true and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive correct absent manifest error. If after any such adjustment any part of any Tax paid by Notwithstanding anything to the Agent or such Lender is subsequently recovered by the Agent or such Lendercontrary in this Section, the Agent or such Lender, as applicable, Borrower shall reimburse not be required to compensate the Borrowers Lender pursuant to this Section for any amounts incurred more than 180 days prior to the extent date that the Lender notifies the Borrower of the amount so recovered. A certificate of an officer of Lender’s intention to claim compensation therefor; provided that, if the Administrative Agent or circumstances giving rise to such Lender setting forth claim have a retroactive effect, then such 180 day period shall be extended to include the amount period of such recovery and the basis therefor shall be conclusive absent manifest errorretroactive effect.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Open Link Financial, Inc.), Revolving Credit and Term Loan Agreement (Open Link Financial, Inc.)
Changed Circumstances. (a) Subject to In the provisions of this Agreement, event that the Borrowers Bank shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to so long as the commencement Bank shall provide reasonable evidence of any Interest Period that the basis of such determination) that:
(Ai) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate Interbank Offered Rate on any date on which the Adjusted Eurodollar Rate would otherwise be set, or
(ii) the making of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans a Eurodollar Loan or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing continuation of or conversion of any Loan to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required Eurodollar Loan has been made impracticable or unlawful by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and interbank Eurodollar market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, or any change Bank in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(iii) the Adjusted Eurodollar Rate no longer represents the effective cost to the Bank for U.S. dollar deposits in the interbank market for deposits in which it regularly participates; then, and in any such event, the Bank shall forthwith so notify the Borrower. Until the Bank notifies the Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Bank to allow selection by the Borrower of Eurodollar Loans shall be suspended. If at the time the Bank so notifies the Borrower, the Borrower has previously given the Bank a Notice of Borrowing or Conversion with respect to one or more Eurodollar Loans but such Loans have not yet been made, continued or converted, such notification shall be deemed to be void and the Borrower may borrow Loans of another type by giving a substitute Notice of Borrowing or Conversion pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice (Awhich shall not be earlier than the date such notice is given) imposethe Borrower shall forthwith prepay all outstanding Eurodollar Loans, modify together with interest thereon and any amounts required to be paid pursuant to Section 2.13, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or deem Conversion pursuant to Section 2.2 hereof.
(b) In case the adoption of or any change in any law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects the Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrower or otherwise with respect to the transactions contemplated hereby (except for taxes on the overall net income of the Bank imposed by the United States of America or any political subdivision thereof or any taxes imposed in substitution or replacement for taxes on the overall net income of the Bank), or
(ii) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder Bank (other than a change such requirements as are already included in the taxation determination of the overall net income of Adjusted Eurodollar Rate), or
(iii) imposes upon the Agent or the Lenders); or (C) impose on the Agent or the Lenders Bank any other condition regarding the Index Loans with respect to its or the Agent’s or Lenders’ funding thereofBorrower's performance under this Agreement, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to Bank, reduce the amount of principal or interest received income receivable by the Agent Bank or Lenders hereunderimpose any expense upon the Bank with respect to any Loans, then the Borrowers Bank shall notify the Borrower thereof. The Borrower agrees to pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce Bank the amount of such compensation increase in cost, reduction in income or additional expense as and will notwhen such cost, reduction or expense is incurred or determined, upon presentation by the Bank of a statement in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent amount and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor Bank's calculation thereof, which statement shall be conclusive deemed true and correct absent manifest error.
Appears in 1 contract
Samples: Revolving Credit Agreement (First Empire State Corp)
Changed Circumstances. (a) Subject to In the provisions of this Agreement, event that:
(i) on any date on which the Borrowers Effective LIBO Rate would otherwise be set the Lender shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining such rate, or
(ii) at any time the rate Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of interest or conversion of any Loan to be applicable to the Revolving Credit Loans requested a LIBOR Loan has been made impracticable or unlawful by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and London interbank eurodollar market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, or any change Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(B) the Effective LIBO Rate shall no longer represent the effective cost to the Lender for U.S. dollar deposits in the interbank market for deposits in which it regularly participates; 19 -15-
(a) (herein called "Affected Loans") shall be suspended. If at the time the Lender so notifies the Borrower, the Borrower has previously given the Lender a Notice of Borrowing or Conversion with respect to one or more Affected Loans but such Loans have not yet gone into effect, such notification shall be deemed to be void and the Borrower may borrow Loans of a non-affected type by giving a substitute Notice of Borrowing or Conversion pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice (Awhich shall not be earlier than the date such notice is given) imposethe Borrower shall, modify with respect to the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be paid pursuant to Section 2.17, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or deem Conversion pursuant to Section 2.2 hereof.
(b) In case any law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central Lender or other governmental authority (whether or not having the force of law):
(i) subjects the Lender to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrower or otherwise with respect to the transactions contemplated hereby (except for taxes on the overall net income of the Lender imposed by the United States of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder Lender (other than a change such requirements as are already included in the taxation determination of the overall net income of Effective LIBO Rate), or
(iii) imposes upon the Agent or the Lenders); or (C) impose on the Agent or the Lenders Lender any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereofwith respect to its performance under this Agreement, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to Lender, reduce the amount of principal or interest received income receivable by the Agent Lender or Lenders hereunderimpose any expense upon the Lender with respect to any Loans, then the Borrowers Lender shall notify the Borrower thereof. The Borrower agrees to pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation increase in cost, reduction in income or additional expense as and will notwhen such cost, reduction or expense is incurred or determined, upon presentation by the Lender of a statement in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent amount and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor Lender's calculation thereof, which statement shall be conclusive deemed true and correct absent manifest error.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Bird Corp)
Changed Circumstances. In the event that:
(a) Subject to On any day on which the provisions of this Agreementrate for a LIBOR Loan would otherwise be set, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, shall have determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining either such rate; or
(b) At any time that the rate Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the continuation of interest to be applicable to the or conversion of any Revolving Credit Loan or any portion of the Term Loan or any portion of the Acquisition Term Loan to a LIBOR Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the applicable market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof or with any request or directive of any such governmental authority having the force of law; or
(ii) the indices on which the interest rates for LIBOR Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not no longer represent the effective pricing cost to the Administrative Agent Lenders for U.S. Dollar dollar deposits of a comparable amount in the interbank market for the relevant period (deposits in which they regularly participate; then, and in any such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate)event, the Administrative Agent shall promptly forthwith so notify the Lead Borrower and (1) all existing Index Loans shall convert thereof. Until the Administrative Agent notifies the Lead Borrower that the circumstances giving rise to Base Margin Loans upon the end of the applicable Interest Period, and (2) such notice no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereoflonger apply, the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion obligation of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make LIBOR Loans of the type affected by such changed circumstances or maintain Index Loans, then to permit the Lead Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans or any portion of the Term Loan or any portion of the Acquisition Term Loan shall be suspended. If at the time the Administrative Agent shall promptly notify so notifies the Lead Borrower, the Lead Borrower has previously given the Administrative Agent a Renewal/Conversion Notice with respect to one or more LIBOR Loans, but such LIBOR Loans have not yet gone into effect, such notification shall be deemed to be void and (A) the Index Loans shall immediately convert to Lead Borrower may only borrow Base Margin Loans and shall furnish a substitute Renewal/Conversion Notice. Upon the expiration of the Interest Period for any LIBOR Loan which is outstanding on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) imposenotification, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation)LIBOR Loan shall thereafter constitute a Base Margin Loan.
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest error.
Appears in 1 contract
Changed Circumstances. (a) Subject to In the provisions of this Agreement, event that the Borrowers Bank shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period that ) that:
(Ai) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate Interbank Offered Rate or a Federal Funds Rate on any date on which the Adjusted Eurodollar Rate or a Federal Funds Rate would otherwise be set, or
(ii) the making of interest a Eurodollar Loan or Federal Funds Rate Loan or the continuation of or conversion of any Loan to be applicable to the Revolving Credit Loans requested a Eurodollar Loan or Federal Funds Rate Loan has been made impracticable (as reasonably determined by the Borrowers to be Index Loans Bank) or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required unlawful by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Periodinterbank Eurodollar market or Federal funds market, and as applicable, or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, or any change Bank in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or (iii) the Adjusted Eurodollar Rate no longer represents the effective cost to the Bank for U.S. dollar deposits in the interbank market for deposits in which it regularly participates; then, and in any such event, the Bank shall forthwith so notify the Company. Until the Bank notifies the Company that the circumstances giving rise to such notice no longer apply, the obligation of the Bank to allow selection by the Company of the affected Loans shall be suspended. If at the time the Bank so notifies the Company, the Company has previously given the Bank a Notice of Borrowing or Conversion with respect to one or more affected Loans but such Loans have not yet been made, continued or converted, such notification shall be deemed to be void and the Company may borrow Loans of another type by giving a substitute Notice of Borrowing or Conversion pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice (Awhich shall not be earlier than the date such notice is given) imposethe Company shall forthwith prepay all outstanding affected Loans, modify together with interest thereon and any amounts required to be paid pursuant to Section 2.13, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or deem Conversion pursuant to Section 2.2 hereof.
(b) In case the adoption of or any change in any law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects the Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Company or otherwise with respect to the transactions contemplated hereby (except for taxes on the overall net income of the Bank imposed by the United States of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder Bank (other than a change such requirements as are already included in the taxation determination of the overall net income of the Agent or the LendersAdjusted Eurodollar Rate); , or (Ciii) impose on imposes upon the Agent or the Lenders Bank any other condition regarding the Index Loans with respect to its or the Agent’s or Lenders’ funding thereofCompany's performance under this Agreement, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to Bank, reduce the amount of principal or interest received income receivable by the Agent Bank or Lenders hereunderimpose any expense upon the Bank with respect to any Loans, then the Borrowers Bank shall notify the Company thereof. The Company agrees to pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce Bank the amount of such compensation increase in cost, reduction in income or additional expense as and will notwhen such cost, reduction or expense is incurred or determined, upon presentation by the Bank of a statement in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent amount and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor Bank's calculation thereof, which statement shall be conclusive deemed true and correct absent manifest error.
Appears in 1 contract
Samples: Revolving Credit Agreement (Essex County Gas Company)
Changed Circumstances. (a) Subject to the provisions of this AgreementEach Borrower agrees that if (i) any law hereafter in effect or (ii) any request, the Borrowers shall have the option (A) as guideline or directive of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, in good faith (which determination shall be conclusive), prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change Governmental Authority (whether or not having the force of lawlaw and whether or not failure to comply therewith would be unlawful) not in effect as of the Effective Date with respect to any law now or hereafter in effect (and whether or not any such law is presently applicable to any Lender) or the interpretation or administration thereof by any Governmental Authority, shall either (A) (1) impose, affect, modify or deem applicable any assessment, reserve, special deposit deposit, capital maintenance or similar requirement against assets held byany Revolving Credit Loans, (2) impose on such Lender any other condition regarding any Advance, this Agreement, any Note or the facilities provided hereunder, or deposits (3) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting such Lender being imposed or for the account of modified or loans by, deemed applicable to such Lender or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans such Lender to any Tax taxes on the recording, registration, notarization or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation formalization of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Revolving Credit Loans or the Agent’s or Lenders’ funding thereofNote, and the Administrative Agent result of any event referred to in clause (i) or Lenders shall determine (which determination ii) above shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders such Lender of making making, funding or maintaining the Index any Revolving Credit Loans or to reduce the amount of principal any sum receivable by such Lender or interest received such Lender's rate of return on capital with respect to any Revolving Credit Loans to a level below that which such Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration such Lender's policies with respect to capital adequacy) by the Agent or Lenders hereunderan amount deemed by such Lender to be material, then the Borrowers then, upon demand by such Lender, each Borrower shall immediately pay to the Agent or the Lenders, on demand, such Lender additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are which shall be sufficient to compensate and indemnify the Agent or Lenders from such Lender for such increased cost cost, tax or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount rate of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recoveredreturn. A certificate of an officer such Lender to the Borrowers claiming compensation under this Section 4.8 shall be final, conclusive and binding on all parties for all purposes in the absence of manifest error. Such certificate shall set forth the nature of the Administrative Agent occurrence giving rise to such compensation, the additional amount or amounts to be paid to it hereunder and the method by which such amounts were determined. In determining such amount, such Lender setting forth may use any reasonable averaging and attribution methods.
(b) If the amount Agent shall, at least one (1) Business Day before the effective date of any conversion of the Prime Advances into LIBOR Advances or the continuation of existing LIBOR Advances (each such recovery and requested loan made and/or to be converted or to continued, a "Pending Advance"), notify the basis therefor Borrowers that the LIBOR based interest rate will not adequately reflect the cost to the Lenders of making or funding such Pending Advance as a LIBOR Advance or that LIBOR is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrowers to select a LIBOR Advance for such Pending Advance, to convert the Prime Advances into LIBOR Advances or to continue the LIBOR Advances, shall be conclusive absent manifest errorsuspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and Pending Advances and each such subsequent LIBOR Advance requested to be made, continued or converted shall be made, continued as, or converted into a Prime Advance.
Appears in 1 contract
Samples: Loan and Security Agreement (Tropical Sportswear International Corp)
Changed Circumstances. (a) Subject to In the provisions of this Agreementevent that:
(i) on any date on which the Eurodollar Rate would otherwise be set, the Borrowers BankBoston shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair reasonable means do not exist for ascertaining the rate of interest to Eurodollar Rate, or
(ii) the Majority Lenders shall notify the Agent that they have determined in good faith (which determination shall be applicable to final and conclusive) that the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement Eurodollar Rate shall not no longer represent the effective pricing cost to the Administrative Majority Lenders of making or maintaining Eurodollar Advances to be made by them, or
(iii) any Lender shall notify the Agent for U.S. Dollar deposits that it has determined in good faith (which determination shall be final and conclusive) that the making or continuation of or conversion of any Advance of such Lender to a Eurodollar Advance has been made impracticable or unlawful by (A) the occurrence of a comparable amount for contingency that materially and adversely affects the relevant period interbank Eurodollar market or (B) compliance by such as for example, but not limited to, official reserve requirements required Lender in good faith with any Applicable Law or interpretation or change thereof by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) ); then, and in any such event, the Agent shall forthwith so notify the Borrower thereof and:
(A) imposeUntil the Agent notifies the Borrower that the circumstances giving rise to any notice given pursuant to Section 5.10(a) no longer apply, modify the obligation of the Lenders to allow selection by the Borrower of Eurodollar Advances shall be suspended. If at the time the Agent so notifies the Borrower, the Borrower has previously given the Agent a Notice of Borrowing or deem a Notice of Conversion or Continuation with respect to one or more Borrowings to be made as or to be converted into or continued as Borrowings comprised of Eurodollar Advances (each, a Pending Borrowing) but such Pending Borrowings have not yet been so made, converted or continued, each such Notice shall be deemed to be an election by the Borrower of Borrowings comprised of Base Rate Advances.
(B) On such date as is specified in any notice to the Borrower from the Agent pursuant to Section 5.10(a) (which date shall not be earlier than the date such notice is given), the Borrower shall prepay the outstanding principal amount of all Eurodollar Advances, together with interest thereon and any amount required to be paid pursuant to Section 5.11, or convert all such outstanding Eurodollar Advances into Base Rate Advances by giving a Notice of Conversion or Continuation pursuant to Section 5.13.
(b) In case of any change in law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects any Lender to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrower or otherwise with respect to the transactions contemplated hereby (except for taxes on the overall net income of such Lender imposed by the United States of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder Lender (other than a change in the taxation of the overall net income of the Agent or the LendersReserve Percentage); or , or
(Ciii) impose on the Agent or the Lenders imposes upon any Lender any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereofwith respect to its performance under this Agreement, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to such Lender, reduce the income receivable by such Lender or impose any expense upon such Lender with respect to any Advances, such Lender shall notify the Agent or and the Lenders of making or maintaining the Index Loans or Borrower thereof. The Borrower agrees to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation increase in cost, reduction in income or additional expense as and will notwhen such cost, in the reasonable opinion of reduction or expense is incurred or determined, upon presentation by such Lender (includingof a statement of the amount and setting forth such Lender's calculation thereof, without limitationwhich statement shall be deemed true and correct absent manifest error, by reason of provided, that no Lender shall be entitled to charge nor shall the Borrower be obligated to pay any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of amount relating to a period more than 90 days prior to the date on which such designation)statement is presented.
(fc) The Agent and Lenders shall receive payments If any lender determines that (i) the adoption of amounts or change in, in each case after the date hereof, any law, rule, regulation or guideline regarding capital requirements for banks or bank holding companies, or any change after the date hereof in the interpretation or application thereof by any governmental authority charged with the administration thereof, or (ii) compliance by such Lender with any guideline, request or directive of principal any such entity regarding capital adequacy (whether or not having the force of and interest law) promulgated after the date hereof, has the effect of reducing the return on such Lender's capital as a consequence of its Commitment to make Advances hereunder to a level below that which such Lender could have achieved but for such adoption, change or compliance (taking into consideration such Lender's then-existing policies with respect to capital adequacy and assuming the Index Loans free and clear of, and without deduction for, full utilization of such Lender's capital) by any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted amount deemed by the Administrative Agent or such Lender to reflect all additional costs incurred by be material, then such Lender shall notify the Agent or and the Borrower thereof. The Borrower agrees to pay to such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs reduction of capital as and when such reduction is determined, upon presentation by such Lender of a statement of the amount and setting forth such Lender's calculation thereof, which statement shall be conclusive deemed true and correct absent manifest error. If after , provided, that no Lender shall be entitled to charge nor shall the Borrower be required to pay any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers amount relating to a period more than 90 days prior to the extent of the amount so recovereddate on which such statement is presented. A certificate of an officer of the Administrative Agent or In determining such amount, a Lender setting forth the amount of such recovery may use any reasonable averaging and the basis therefor shall be conclusive absent manifest errorattribution methods.
Appears in 1 contract
Samples: Loan and Security Agreement (Synthetic Industries Inc)
Changed Circumstances. In the event that: ---------------------
(a) Subject to on any day on which the provisions of this Agreementrate for a LIBOR Loan would otherwise be set, the Borrowers Lender shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining either such rate; or
(b) at any time the rate Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the continuation of interest to be applicable to the or conversion of any Revolving Credit Loans requested Loan to a LIBOR Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the applicable market or (B) compliance by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth Lender in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or or
(Cii) impose the indices on which the Agent or interest rates for LIBOR Loan shall no longer represent the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or Lender for U.S. dollar deposits in the Lenders interbank market for deposits in which it regularly participates; then, and in any such event, the Lender shall forthwith so notify the Borrower thereof Until the Lender notifies the Borrower that the circumstances giving rise to such notice no longer apply, the obligation of making or maintaining the Index Lender to make LIBOR Loans of the type affected by such changed circumstances or to reduce permit the amount of principal Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended. If at the time the Lender so notifies the Borrower, the Borrower has previously given the Lender a Renewal/Conversion Notice with respect to one or interest received by the Agent or Lenders hereundermore LIBOR Loans, then the Borrowers shall pay to the Agent or the Lenders, on demandbut such Revolving Credit Loans have not yet gone into effect, such additional amounts as notification shall be deemed to be void and the Administrative Agent or Borrower may borrow Revolving Credit Loans which are Base Margin Loans by giving a substitute Renewal/Conversion Notice. Upon the Lenders shallexpiration of the Interest Period for any LIBOR Loan which is outstanding on the date of such notification, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation)LIBOR Loan shall thereafter constitute a Base Margin Loan.
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest error.
Appears in 1 contract
Samples: Loan and Security Agreement (Number Nine Visual Technology Corp)
Changed Circumstances. In the event that:
(a) Subject to on any date on which the provisions of this AgreementApplicable Eurodollar Rate would otherwise be set, the Borrowers Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate Eurodollar Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of interest to be applicable to the Revolving Credit Loans requested Eurodollar Pricing Option has been made impracticable or unlawful by (A) the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits occurrence of a comparable amount for contingency that materially and adversely affects the relevant period London interbank market or (such as for example, but not limited to, official reserve requirements required B) compliance by Regulation D to the extent not given effect any Lender in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(ii) the Eurodollar Rate shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or no longer represent the effective cost to the Lenders for U.S. dollar deposits in or the London interbank market, as applicable for the account of or loans bydeposits in which they regularly participate; then, or any other acquisition of funds or disbursements byand in such event, the Agent or shall forthwith so notify the Lenders; (B) subject Borrowers thereof. Until the AgentAgent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to and the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding allow election by the Borrowers of a Eurodollar Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, New England Audio has previously given the Agent a Eurodollar Pricing Notice with respect to a Eurodollar Pricing Option, but the Eurodollar Pricing Option requested therein has not yet gone into effect, such Tax Eurodollar Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the Eurodollar Pricing Option with respect to all Eurodollar Rate Loans shall be terminated and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicablejointly and severally, shall reimburse the Borrowers pay all interest due on such Eurodollar Rate Loans and any amounts required to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorpaid pursuant to Section 4.3.
Appears in 1 contract
Samples: Credit Agreement (Tweeter Home Entertainment Group Inc)
Changed Circumstances. (a) Subject to the provisions of this Agreement, the Borrowers Borrower shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Eurodollar Loans of various Interest Periods, ; (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Eurodollar Loans as Index Eurodollar Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Eurodollar Loans to Base Margin Rate Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Rate Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Eurodollar Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b2.20(b) or 2.21(c2.20(c) of this Agreement or if an Event of Default has occurred and is continuingoccurred.
(b) The Administrative Agent’s 's determination of the Index Eurodollar Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, in good faith (which determination shall be conclusive), prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers Borrower to be Index Eurodollar Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Eurodollar Loans shall convert to Base Margin Rate Loans upon the end of the applicable Interest Period, and (2) no additional Index Eurodollar Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “"Regulatory Change”"), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Eurodollar Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Eurodollar Loans shall immediately convert to Base Margin Rate Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Eurodollar Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Eurodollar Loan is paid prior to the last Business Day of any Interest Period or if an Index Eurodollar Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree Borrower agrees to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Eurodollar Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occurprepayment.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Eurodollar Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers Borrower to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Eurodollar Loans or the Agent's or any Lender’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Eurodollar Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers Borrower shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Eurodollar Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender Lenders shall be subject to any Tax in respect of any Index Eurodollar Loans or any part thereof or, (B) the Borrowers Borrower shall be required to withhold or deduct any Tax from any such amount, the Index Eurodollar Rate applicable to such Index Eurodollar Loans shall be adjusted by the Administrative Agent or such Lender Lenders to reflect all additional costs incurred by the Agent or such Lender Lenders in connection with the payment by the Agent or such Lender Lenders or the withholding by the Borrowers Borrower of such Tax and the Borrowers Borrower shall provide the Agent or such Lender Lenders with a statement detailing the amount of any such Tax actually paid by the BorrowersBorrower. Determination by the Administrative Agent or such Lender Lenders of the amount of such costs shall be conclusive absent manifest errorconclusive. If after any such adjustment any part of any Tax paid by the Agent or such Lender Lenders is subsequently recovered by the Agent or such LenderLenders , the Agent or such LenderLenders, as applicable, shall reimburse the Borrowers Borrower to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive (absent manifest error).
Appears in 1 contract
Samples: Loan and Security Agreement (Wild Oats Markets Inc)
Changed Circumstances. (a) Subject to The Agent may give the provisions Borrower notice of this Agreement, the Borrowers occurrence of the following:
(i) The Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive)) on any day on which the rate for a LIBOR Loan would otherwise be set, prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of businessthat, or (B) by reason of circumstances changes arising after the date of this Agreement affecting the London Interbank Eurodollar interbank market, adequate and fair means do not exist for ascertaining such rate on the rate basis provided for in the definition of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are curedLIBOR Offer Rate.
(cii) IfThe Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(A) The continuation of or conversion of any Revolving Credit Loan to a LIBOR Loan has been made impracticable or /October 28, 1997/ unlawful by the occurrence of a change in law occurring after the date hereof, of this Agreement that materially and adversely affects the introduction of, applicable market or compliance by the Agent or any change Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; ).
(B) subject The indices on which the Agent, interest rates for LIBOR Loans are determined shall no longer represent the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each any Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, U.S. dollar deposits in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation)interbank market for deposits in which it regularly participates.
(fb) In the event that the Agent gives the Borrower notice of an occurrence described in Section 2-17(a), then, until the Agent notifies the Borrower that the circumstances giving rise to such notice no longer apply:
(i) The obligation of the Agent and Lenders of each Lender to make LIBOR Loans of the type affected by such changed circumstances or to permit the Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall receive payments be suspended.
(ii) Any notice which the Borrower had given the Agent with respect to any LIBOR Loan, the time for action with respect to which has not occurred prior to the Agent's having given notice pursuant to Section 2-17(a), shall be deemed at the option of amounts the Agent to not having been given and such loan shall be made or continued as, or converted into, as appropriate, a Base Margin Loan.
(iii) Subject to the provisions of principal of Section 2-10(e), the Borrower may (and interest shall, with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect occurrence of any Index Loans event described in Section 2-17(a)(ii)), cancel the relevant borrowing or any part thereof or, (B) conversion notice on the Borrowers shall be required to withhold or deduct any Tax from any such amount, same date the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers Borrower was notified of such Tax and event, or if the Borrowers shall provide LIBOR Loan is then outstanding, prepay the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest erroraffected LIBOR Loan.
Appears in 1 contract
Changed Circumstances. (a) Subject to In the provisions of this Agreement, event that: (i) on any date on which the Borrowers Adjusted Eurodollar Rate would otherwise be set the Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate Interbank Offered Rate, or (ii) at any time the Agent shall have received notice that: (A) the making or continuation of interest or conversion of any Loan to be applicable to a Eurodollar Loan by any Bank has been made impracticable or unlawful by (l) the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits occurrence of a comparable amount for contingency that materially and adversely affects the relevant period (interbank Eurodollar market in which such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and Bank regularly participates or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or compliance by any change Bank in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or (B) the Adjusted Eurodollar Rate applicable to any proposed Eurodollar Loan shall not fairly and adequately reflect the cost of the Required Banks to fund such Loan; then, and in any such event, the Agent shall forthwith so notify the Borrower thereof. Until the Agent notifies the Borrower that the circumstances giving rise to such notice no longer apply, the ability of the Borrower to select Eurodollar Loans shall be suspended. If at the time the Agent so notifies the Borrower, the Borrower has previously delivered a Loan Request for a Eurodollar Loan but such Loan has not yet gone into effect, such Loan Request shall be deemed to be void and the Borrower may borrow a Base Rate Loan by giving a substitute Loan Request pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice (Awhich shall not be earlier than the date such notice is given) imposethe Borrower shall, modify with respect to outstanding Eurodollar Loans, prepay the same, together with interest thereon and any amounts required to be paid pursuant to Section 2.12, and may borrow a Base Rate Loan by requesting such Loan in accordance with Section 2.2 hereof.
(b) In case any law, regulation, treaty or deem official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law): (i) subjects any Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrower or otherwise with respect to the transactions contemplated hereby (except for taxes on the overall net income of any Bank imposed by the United States of America or any political subdivision thereof), or (ii) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder Bank (other than a change such requirements as are already included in the taxation determination of the overall net income of the Agent or the LendersAdjusted Eurodollar Rate); , or (Ciii) impose on the Agent or the Lenders imposes upon any Bank any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereofwith respect to its performance under this Agreement, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to such Bank, reduce the income receivable by such Bank or impose any expense upon such Bank with respect to any Loans, such Bank shall notify the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by and the Agent or Lenders hereunder, then shall notify the Borrowers shall Borrower thereof. The Borrower agrees to pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce Bank the amount of such compensation increase in cost, reduction in income or additional expense as and will notwhen such cost, reduction or expense is incurred or determined, upon presentation by the affected Bank of a statement in the reasonable opinion of amount and setting forth such Lender (includingBank's calculation thereof, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender which statement shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax deemed true and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive correct absent manifest error.
Appears in 1 contract
Samples: Credit Agreement (FMR Corp)
Changed Circumstances. (a) Subject to The Lender may give the provisions Borrower notice of this Agreement, the Borrowers occurrence of the following:
(i) The Lender shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive)) on any day on which the rate for a Eurodollar Loan would otherwise be set, prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(cii) If, after The Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(A) The continuation of or conversion of any Revolving Credit Loan to a Eurodollar Loan has been made impracticable or unlawful by the date hereof, occurrence of a contingency that materially and adversely affects the introduction of, applicable market or any change compliance by the Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; ).
(B) subject The indices on which the Agent, interest rates for Eurodollar Loans are based shall no longer represent the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or Lender for U.S.dollar deposits in the Lenders interbank market for deposits in which it regularly participates.
(b) In the event that the Lender gives the Borrower notice of making or maintaining an occurrence described in Section 2-21(a), then, until the Index Lender notifies the Borrower that the circumstances giving rise to such notice no longer apply:
(i) The obligation of the Lender to make Eurodollar Loans of the type affected by such changed circumstances or to reduce permit the amount of principal or Borrower to select the affected interest received by rate as otherwise applicable to any Revolving Credit Loans shall be suspended.
(ii) Any notice which the Agent or Lenders hereunderBorrower had given the Lender with respect to any Eurodollar Loan, then the Borrowers shall pay time for action with respect to which has not occurred prior to the Agent or Lender's having given notice pursuant to Section 2-21(a), shall be deemed to be a request for a Base Margin Loan.
(c) Notwithstanding the Lendersforegoing, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time Lender agrees to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and so long as such efforts would not be disadvantageous to it, in its reasonable discretion, in any legal, economic or regulatory manner) to designate a different lending office for if the Liabilities if making of such designation will avoid would allow the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers its lending office to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorcontinue to make Eurodollar Loans.
Appears in 1 contract
Changed Circumstances. In the event that:
(ai) Subject to on any date on which the provisions of this AgreementAdjusted Eurodollar Rate or the Canadian Eurodollar Rate would otherwise be set, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determinesCanadian Bank, as applicable, shall have determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans Interbank Offered Rate or the Canadian Eurodollar Rate, as the case may be, or
(ii) at any time the Agent or the Canadian Bank, as applicable, shall have determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of, or conversion of any Revolving Credit Loans bearing interest at Loan to, a Eurodollar Loan has been made impracticable or unlawful by (l) the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits occurrence of a comparable amount for contingency that materially and adversely affects the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and Interbank Eurodollar Market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, Agent or any change Bank in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(B) the Adjusted Eurodollar Rate or Canadian Eurodollar Rate shall (A) impose, modify or deem applicable no longer represent the effective cost to any assessment, reserve, special deposit or similar requirement against assets held byU.S. Bank for United States dollar deposits, or deposits to the Canadian Bank for Canadian dollar deposits, as applicable, in or for the account of or loans byInterbank Eurodollar Market in which it regularly participates; then, or and in any other acquisition of funds or disbursements bysuch event, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such LenderCanadian Bank, as applicable, shall reimburse forthwith so notify the Borrowers U.S. or Canadian Borrower thereof. Until the Agent or the Canadian Bank, as applicable, notifies such Borrower that the circumstances giving rise to such notice no longer apply, the obligation of each Bank to allow selection by the Borrower of the Eurodollar Loan affected by the contingencies described in this Section 2B.7 (herein called "Affected Loans") shall be suspended. If at the time the Agent or the Canadian Bank, as applicable, so notifies such Borrower, such Borrower has previously given the Agent or the Canadian Bank a Notice of Borrowing or Conversion with respect to one or more Affected Loans but such Affected Loans have not yet gone into effect, such notification shall be deemed to be void and such Borrower may borrow Revolving Loans of a non-affected type by giving a substitute Notice of Borrowing or Conversion pursuant to Section 2B.1. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given) such Borrower shall, with respect to the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be paid pursuant to Section 2B.8, and may borrow a Base Rate Loan in accordance with Section 2.1 hereof, as applicable, by giving a Notice of Borrowing or Conversion pursuant to Section 2B.1 hereof. Notwithstanding the foregoing, to the extent reasonably possible, each Bank will designate an alternate office with respect to its advances of the amount Eurodollar Loans as may be reasonably required to reduce any liability of any Borrower to such Bank under Sections 2B.7, 2B.10 or 2B.11, so recovered. A certificate of an officer of the Administrative Agent or long as such Lender setting forth the amount of designation is not disadvantageous to such recovery and the basis therefor shall be conclusive absent manifest errorBank in any way.
Appears in 1 contract
Samples: Revolving Credit Agreement (United States Leather Inc /Wi/)
Changed Circumstances. (a) Subject to in the provisions of this Agreement, event that:
(i) on any date on which the Borrowers Adjusted LIBOR Rate would otherwise be set the Bank shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate Adjusted LIBOR Rate, or
(ii) at any time the Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of interest or conversion of any Loan to be applicable to the Revolving Credit Loans requested a LIBOR Loan has been made impracticable or unlawful by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and London interbank market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, or any change Bank in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(B) the Adjusted LIBOR Rate shall no longer represent the effective cost to the Bank for U.S. dollar deposits in the interbank market for deposits in which it regularly participates;
(a) (herein called "Affected Loans") shall be suspended. If at the -------------- time the Bank so notifies the Company, the Company has previously given the Bank a Notice of Borrowing or Conversion with respect to one or more Affected Loans but such Loans have not yet gone into effect, such notification shall be deemed to be void and the Company may borrow Loans of a non-affected type by giving a substitute Notice of Borrowing or Conversion pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice (Awhich shall not be earlier than the date such notice is given) imposethe Company shall, modify with respect to the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be paid pursuant to Section 2.13, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or deem Conversion pursuant to Section 2.2 hereof.
(b) in case any law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects the Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Company or otherwise with respect to the transactions contemplated hereby (except for taxes on the overall net income of the Bank imposed by the United States of America or any political subdivision thereof, or
(ii) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder Bank (other than a change such requirements as are already included in the taxation determination of the overall net income of Adjusted LIBOR Rate), or
(iii) imposes upon the Agent or the Lenders); or (C) impose on the Agent or the Lenders Bank any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereofwith respect to its performance under this Agreement, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to Bank, reduce the amount of principal or interest received income receivable by the Agent Bank or Lenders hereunderimpose any expense upon the Bank with respect to any Loans, then the Borrowers Bank shall notify the Company thereof. The Company agrees to pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce Bank the amount of such compensation increase in cost, reduction in income or additional expense as and will notwhen such cost, reduction or expense is incurred or determined, upon presentation by the Bank of a statement in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent amount and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor Bank's calculation thereof, which statement shall be conclusive deemed true and correct absent manifest error.
Appears in 1 contract
Changed Circumstances. In the event that: ---------------------
(a) Subject to on any day on which the provisions of this Agreementrate for a Libor Rate Loan would otherwise be set, the Borrowers Bank shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining such rate; or
(b) at any time the rate Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the making or continuation of interest or conversion of any loan to be a Libor Rate Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the applicable to the Revolving Credit Loans requested market or (B) compliance by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth Bank in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in the order or interpretation or administration change thereof by any governmental authority charged with the interpretation or admin- istration thereof or with any central bank request or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day directive of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change governmental authority (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or or
(Cii) impose the indices on which the Agent or interest rates for Libor Rate Loans shall no longer represent the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or Bank for U.S. dollar deposits in the Lenders interbank market for deposits in which it regularly participates; then, and in any such event, the Bank shall forthwith so notify the Borrower thereof. Until the Bank notifies the Borrower that the circumstances giving rise to such notice no longer apply, the obligation of making or maintaining the Index Bank to make Libor Rate Loans of the type affected by such changed circumstances or to reduce permit the amount Borrower to select Libor Rate for any advances shall be suspended. If at the time the Bank so notifies the Borrower, the Borrower has previously given the Bank a Notice of principal Borrowing or a Renew al/Conversion Notice with respect to one or more Libor Rate Loans, but such advances have not yet gone into effect, such notification shall be deemed to be void and the Borrower may borrow under interest received by the Agent or Lenders rate options otherwise available hereunder, then by giving a substitute Notice of Borrowing or a Renewal/Conversion Notice. Upon the Borrowers shall pay to expiration of the Agent or Interest Period for any Libor Rate Loan which is outstanding on the Lendersdate of such notification, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation)Libor Rate Loan shall thereafter constitute a Floating Rate Loan.
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest error.
Appears in 1 contract
Samples: Commercial Promissory Note and Loan Agreement (D M Management Co)
Changed Circumstances. (a) Subject If prior to the provisions of this Agreement, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last first day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.:
(bi) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, in good faith shall have determined (which determination shall be conclusive)conclusive and binding upon the Borrower) that, prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar relevant market, adequate and fair reasonable means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to Eurocurrency Rate for such Interest Period, or
(ii) the Administrative Agent shall have received notice from the Majority Lenders or the Majority Multicurrency Lenders, as the case may be, that the Eurocurrency Rate determined or to be determined for U.S. Dollar deposits such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of a comparable amount for the relevant period (making or maintaining their affected Loans during such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate)Interest Period, the Administrative Agent shall promptly notify give telecopy or telephonic notice thereof to the Lead Borrower and the Lenders as soon as practicable thereafter. If such notice is given (1w) all existing Index any Eurodollar Loans or Multicurrency Loans, as the case may be, requested to be made on the first day of such Interest Period shall be made as ABR Loans, provided, that, notwithstanding the provisions of subsection 2.2 or 2.14, the Borrower may cancel the request for such Eurodollar Loan or Multicurrency Loan, as the case may be, by written notice to the Administrative Agent one Business Day prior to the first day of such Interest Period and the Borrower shall not be subject to any liability pursuant to subsection 3.11 with respect to such cancelled request, (x) any Loans that were to have been converted on the first day of such Interest Period to Eurodollar Loans shall convert to Base Margin be continued as ABR Loans, (y) any outstanding Eurodollar Loans upon shall be converted, on the end first day of the applicable such Interest Period, to ABR Loans and (2z) any Multicurrency Loans to which such Interest Period relates shall be repaid on the first day of such Interest Period. Until such notice has been withdrawn by the Administrative Agent, no additional Index further Eurodollar Loans or Multicurrency Loans shall be made until such circumstances are curedor continued as such, nor shall the Borrower have the right to convert ABR Loans to Eurodollar Loans.
(ci) If, after Notwithstanding anything to the date hereof, the introduction of, contrary herein or any change in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election with respect to any applicable lawthen-current Benchmark, treatyas applicable, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent and the Borrower may amend this Agreement to replace such Benchmark with one or more Benchmark Replacements (it being understood that all amounts denominated in a given currency for which a Benchmark is being replaced shall be subject to the same Benchmark Replacement). Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Majority Lenders. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Majority Lenders have delivered to the Administrative Agent written notice that such Majority Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section will occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right (in consultation with the Borrower) to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party hereto.
(iii) The Administrative Agent will promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against of (i) any loss (including any loss on redeployment occurrence of the deposits a Benchmark Transition Event or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders an Early Opt-in Election, as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereofapplicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders shall determine (which pursuant to this Section, including any determination shall be conclusive) that the result with respect to a tenor, rate or adjustment or of the foregoing is occurrence or non-occurrence of an event, circumstance or date and any decision to increase the cost to the Agent take or the Lenders of making refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereundertheir sole discretion and without consent from any other party hereto, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will notexcept, in the reasonable opinion of such Lender (includingeach case, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation)as expressly required pursuant to this Section.
(fiv) The Agent and Lenders shall receive payments Upon the Borrower’s receipt of amounts notice of principal the commencement of and interest a Benchmark Unavailability Period with respect to the Index Loans free and clear a given Benchmark, Borrower may revoke any request for a borrowing of, conversion to or continuation of Loans subject to such Benchmark Unavailability Period to be made, converted or continued during such Benchmark Unavailability Period and, failing that, (i) in the case of a request for borrowing of, conversion to or continuation of Loans denominated in Dollars, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to ABR Loans and without deduction for(ii) in the case of a request for borrowing of, conversion to or continuation of Loans denominated in any Taxescurrency other than Dollars, such request shall be ineffective. If (A) During any Benchmark Unavailability Period with respect to any Benchmark, the Agent component of Base Rate or any Lender shall other Benchmark that is based upon the Benchmark that is the subject of such Benchmark Unavailability Period will not be subject used in any determination of Base Rate or such other Benchmark. Furthermore, if any Eurocurrency Loan in any Available Foreign Currency is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index a Relevant Rate applicable to such Index Loans Eurocurrency Loan, then (i) if such Eurocurrency Loan is denominated in Dollars, then on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), such Loan shall be adjusted converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars on such day or (ii) if such Lender Eurocurrency Loan is denominated in any Available Foreign Currency, then such Loan shall, on the last day of the Interest Period applicable to reflect all additional costs incurred such Loan (or the next succeeding Business Day if such day is not a Business Day), at the Borrower’s election prior to such day: (A) be prepaid by the Agent Borrower on such day or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination (B) be converted by the Administrative Agent or such Lender to, and (subject to the remainder of this subclause (B)) shall constitute, an ABR Loan denominated in Dollars (in an amount equal to the amount Dollar Equivalent of such costs shall be conclusive absent manifest error. If after any Available Foreign Currency) on such adjustment any part of any Tax paid day (it being understood and agreed that if the Borrower does not so prepay such Loan on such day by the Agent or such Lender is subsequently recovered by the Agent or such Lender12:00 noon, the Agent or such Lenderlocal time, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or is authorized to effect such Lender setting forth the amount conversion of such recovery Eurocurrency Loan into an ABR Loan denominated in Dollars), and, in the case of such subclause (B), upon any subsequent implementation of a Benchmark Replacement in respect of such Available Foreign Currency pursuant to this Section 3.6, such ABR Loan denominated in Dollars shall then be converted by the Administrative Agent to, and shall constitute, a Eurocurrency Loan denominated in such original Available Foreign Currency (in an amount equal to the basis therefor shall be conclusive absent manifest errorAvailable Foreign Currency Equivalent of such Available Foreign Currency) on the day of such implementation, giving effect to such Benchmark Replacement in respect of such Available Foreign Currency.
Appears in 1 contract
Changed Circumstances. (a) Subject to the provisions Notwithstanding any other provision of this Agreement, in the Borrowers event that:
(a) on any date on which the LIBOR Rate otherwise would be set the Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period unless not made in good faith) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to LIBOR Rate, or
(b) at any time the Agent or any Lender shall have determined in good faith (which determination shall be applicable final and conclusive, unless not made in good faith, and, if made by any Lender, shall have been communicated to the Revolving Credit Loans requested Agent in writing) that:
(i) the making or continuation of or conversion of any Loan to a LIBOR Rate Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the interbank Eurodollar market, or (B) compliance by the Borrowers to be Index Loans Agent or the Revolving Credit Loans bearing interest at the rates set forth such Lender in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in good faith with any applicable lawLaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof by thereof, or with any governmental authority request or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day directive of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change Governmental Authority (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the LendersLaw); or or
(Cii) impose on the Agent or LIBOR Rate no longer shall represent the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or such Lender for Dollar deposits in the interbank market for deposits in which it regularly participates; then, and in any such event, the Agent promptly shall notify TIMET thereof. Until the Agent notifies TIMET that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders to allow selection by TIMET of making or maintaining the Index Loans or to reduce the amount type of principal or interest received Loan affected by the contingencies described in this Section 5.24 of this Agreement shall be suspended. If at the time TIMET receives a notice from the Agent or Lenders hereunder, then the Borrowers shall pay pursuant to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify preceding sentence TIMET previously has given the Agent a Notice of Borrowing or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest Conversion with respect to the Index one or more affected Loans, but such Loans free and clear ofhave not yet been made, and without deduction for, any Taxes. If (A) the Agent or any Lender such notification shall be subject deemed to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index a request for Base Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorLoans.
Appears in 1 contract
Changed Circumstances. (a) Subject to If, on or before the provisions date off acceptance of this Agreementany Draft, the Borrowers Lender shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, in good faith determined (which determination shall be conclusive)final, prior conclusive and binding on the Borrower) that (a) it is impermissible for the Lender to accept any Draft due to the commencement introduction of any Interest Period that (A) U.S. Dollar deposits Requirement of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, Law or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority has made it unlawful, or that any central bank or other fiscalGovernmental Authority has asserted that it is unlawful, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders Lender to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for extend any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans byAcceptance, or any other acquisition order, judgment, or decree of funds any Governmental Authority or disbursements byarbitrator purports by its terms to enjoin or restrain the Lender from making or extending any Acceptance, (b) acceptances in amounts or for durations corresponding to the proposed Acceptance(s) are not being readily traded in the applicable market, or (c) by reason of changes affecting the applicable market, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans discount rate to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change be in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, effect for that period will not adequately and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase fairly reflect the cost to the Agent Lender of accepting or discounting the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunderDraft, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject under no obligation to any Tax accept the requested Draft notwithstanding anything to the contrary in respect this Article III. The Lender shall notify the Borrower in the event the Lender makes such a determination; PROVIDED, HOWEVER, that the failure to give such notice shall not affect the validity of that determination or the rejection of any Index Loans Draft submitted for acceptance. No determination made under this subsection, however, shall in and of itself reduce the unused portion of the Aggregate Commitment or any part thereof or, (B) limit the Borrowers shall be required Borrower's ability to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender request other Extensions of Credit hereunder in connection accordance with the payment by the Agent or such Lender or the withholding by the Borrowers terms and provisions of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorthis Agreement.
Appears in 1 contract
Samples: Revolving Credit Loan Agreement (Marshall Industries)
Changed Circumstances. (a) Subject to In the provisions of this Agreement, event that:
(i) on any date on which the Borrowers Adjusted Eurodollar Rate would otherwise be set the Bank shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate London Interbank Offered Rate, or
(ii) at any time the Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of interest or conversion of any Loan to be applicable to the Revolving Credit Loans requested a Eurodollar Loan has been made impracticable or unlawful by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and London interbank Eurodollar market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, or any change Bank in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(B) the Adjusted Eurodollar Rate shall no longer represent the effective cost to the Bank for U.S. dollar deposits in the London interbank market;
(a) (herein called "AFFECTED LOANS") shall be suspended. If at the time the Bank so notifies each Borrower, a Borrower has previously given the Bank a Loan Request with respect to one or more Affected Loans but such Loans have not yet gone into effect, such Loan Request shall be deemed to be void and, if the Bank in its discretion continues to be willing to lend to such Borrower, such Borrower may borrow Loans of a non-affected type by delivering a substitute Loan Request pursuant to Section 2.2(a) hereof. Upon such date as shall be specified in such notice (Awhich shall not be earlier than the date such notice is given) imposeeach Borrower shall, modify with respect to the outstanding Affected Loans made to it, prepay the same, together with interest thereon and any amounts required to be paid pursuant to Section 2.10, and may borrow Loans of another type in accordance with Section 2.1 hereof by delivering substitute Loan Requests pursuant to Section 2.2(a) hereof.
(b) In case any change in law, regulation, treaty or deem official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects the Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by any Borrower or otherwise with respect to the transactions contemplated hereby (except for taxes on the overall net income of the Bank imposed by the United States of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder Bank (other than a change such requirements as are already included in the taxation determination of the overall net income of Adjusted Eurodollar Rate), or
(iii) imposes upon the Agent or the Lenders); or (C) impose on the Agent or the Lenders Bank any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereofwith respect to its performance under this Agreement, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to Bank, reduce the amount of principal or interest received income receivable by the Agent Bank or Lenders hereunderimpose any expense upon the Bank with respect to any Loans, then the Borrowers Bank shall notify each Borrower thereof. To the extent such cost, reduction or expense is attributable to any specific Loan or Loans, the applicable Borrower(s) agree(s) to pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce Bank the amount of such compensation increase in cost, reduction in income or additional expense attributable to such Loan or Loans as and will notwhen such cost, reduction or expense is incurred or determined, upon presentation by the Bank of a statement in the amount and setting forth the Bank's calculation thereof, which statement shall be deemed true and correct absent manifest error. To the extent such cost, reduction or expense is not so attributable to any Loan or Loans, each Borrower, for itself or on behalf of the Portfolios, as applicable, agrees to pay to the Bank, in the reasonable opinion proportion that the average amount of Loans outstanding made to such Borrower for its own account or for the account of each Portfolio during the preceding 12-month period (or such shorter period that this Agreement shall have been effective) bears to the average amount of all Loans outstanding to all Borrowers during such period (or, if no Loans shall have been outstanding, 10% of such Lender (includingamount), without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax increase in cost, reduction in income or additional expense, determined and paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest erroraforesaid.
Appears in 1 contract
Samples: Credit Agreement (RBB Fund Inc)
Changed Circumstances. In the event that:
(a) Subject to on any date on which the provisions of this Agreement, Applicable LIBOR Rate would otherwise be set the Borrowers Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of interest to be applicable to LIBOR Pricing Option has been made impracticable or unlawful by (A) the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits occurrence of a comparable amount for contingency that materially and adversely affects the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction ofLondon interbank market, or (B) compliance by any change Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(ii) the LIBOR Rate shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or no longer represent the effective cost to the Lenders for U.S. dollar deposits in or the London interbank market, as applicable for the account of or loans bydeposits in which they regularly participate; then, or any other acquisition of funds or disbursements byand in such event, the Agent or shall forthwith so notify the Lenders; (B) subject Borrowers thereof. Until the AgentAgent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to and the Agent or the Lenders of principal or interest due from to allow election by the Borrowers to of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. If the Lenders hereunder (other than a change in the taxation LIBOR Pricing Option has been made unlawful by any of the overall net income of the Agent or the Lenderscircumstances described in Section 2.14(b)(i); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders then upon such date as shall determine be specified in such notice (which determination shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then terminated and the Borrowers shall pay to the Agent or the Lenders, all interest due on demand, such additional LIBOR Rate Loans and any amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable be paid pursuant to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorSection 4.3.
Appears in 1 contract
Changed Circumstances. (a) Subject to In the provisions of this Agreementevent that:
(i) on any date on which the Adjusted Eurodollar Rate would otherwise be set, the Borrowers Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to Interbank Offered Rate, or
(ii) at any time the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify have determined in good faith (which determination shall be final and conclusive) that:
(A) the Lead Borrower and making or continuation of or conversion of any Loan to a Eurodollar Loan has been made impracticable or unlawful by (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and Interbank Eurodollar market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or compliance by any change Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(B) the Adjusted Eurodollar Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the Interbank Eurodollar market for deposits in which it regularly participates;
(a) (herein called "Affected Loans") shall be suspended. If at the time the Agent so notifies the Company, the Company has previously given the Agent a Notice of Borrowing or Conversion with respect to one or more Affected Loans but such Loans have not yet gone into effect, such notification shall be deemed to be void and the Borrowers may borrow Loans of a non-affected type by giving a substitute Notice of Borrowing or Conversion Pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice (Awhich shall not be earlier than the date such notice is given) imposethe Company shall, modify with respect to the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be paid pursuant to Section 2.13, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or deem Conversion purs to Section 2.2 hereof.
(b) In case any law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects any Lender to any tax not in effect on the date hereof with respect to payments of principal or interest or any other amounts payable hereunder by the Company or otherwise with respect to the transactions contemplated hereby (except for taxes on the overall net income of such Lender imposed by the United States of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder Lender (other than a change such requirements as are already included in the taxation determination of the overall net income of the Agent or the LendersAdjusted Eurodollar Rate); or , or
(Ciii) impose on the Agent or the Lenders imposes upon any Lender any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereofwith respect to its performance under this Agreement, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to such Lender, reduce the amount of principal income receivable by such Lender or interest received by impose any expense upon such Lender with respect to any outstanding Eurodollar Loans, such Lender shall notify the Agent or Lenders hereunderCompany thereof. The Borrowers, then the Borrowers shall jointly and severally, agrees to pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation increase in cost, reduction in income or additional expense as and will notwhen such cost, in the reasonable opinion of such Lender (includingreduction or expense is incurred or determined, without limitation, upon presentation by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of a statement in the amount of and setting forth such costs Lender's calculation thereof, which statement shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery deemed true and the basis therefor shall be conclusive correct absent manifest error.
Appears in 1 contract
Samples: Credit Agreement (Brookstone Inc)
Changed Circumstances. (a) Subject Circumstances Affecting LIBOR Rate or LIBOR Market Index Rate Availability. If prior to the provisions of this Agreement, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last first day of any Interest Period, to continue all or any portion of (i) the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above Agent shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, have determined in good faith (which determination shall be conclusive)conclusive and binding upon the Borrower absent manifest error) that, prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar relevant market, adequate and fair reasonable means do not exist for ascertaining the rate LIBOR Rate for such Interest Period, (ii) the Agent has received notice from the Required Lenders that the LIBOR Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders of interest making or maintaining their LIBOR Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the LIBOR Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, the Agent shall give telecopy or telephonic notice thereof to the Revolving Credit Borrower and the Lenders as soon as practicable thereafter, and will also give prompt written notice to the Borrower when such conditions no longer exist. If such notice is given (i) any LIBOR Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (ii) any Revolving Loans that were to have been converted on the first day of such Interest Period to or continued as LIBOR Loans shall be converted to or continued as Base Rate Loans and (iii) each outstanding LIBOR Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for exampleAgent, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index further LIBOR Loans shall be made until such circumstances are cured.
or continued as such, nor shall the Borrower have the right to convert Base Rate Loans to LIBOR Loans. Notwithstanding any other provision of this Agreement, if (c) If, after the date hereof, the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (Ai) the Index Loans Swingline Lender shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall reasonably determine (which determination shall be conclusiveconclusive and binding absent manifest error) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitationthat, by reason of any economiccircumstances affecting the relevant market, legalreasonable and adequate means do not exist for ascertaining the LIBOR Market Index Rate, or regulatory (ii) the Swingline Lender shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that the LIBOR Market Index Rate does not adequately and fairly reflect the cost or disadvantage that such of funding LIBOR Market Index Swingline Loans, the Swingline Lender may bear or suffer by reason shall forthwith give telephone notice of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect determination, confirmed in writing, to the Index Loans free and clear ofBorrower, and without deduction for, any Taxes. If (A) thereafter the Agent or any Lender shall be subject right to any Tax in respect of any request LIBOR Market Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Swingline Loans shall be adjusted by suspended until such time as the Administrative Agent or conditions giving rise to such Lender to reflect all additional costs incurred by notice shall no longer exist. In the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers event LIBOR Market Index Swingline Loans are not available on account of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount operation of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lenderthis Section, the Agent Swingline Lender will endeavor to provide an alternative index or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorreference rate which will provide a similar interest rate based on historical data.
Appears in 1 contract
Changed Circumstances. (a) Subject to In the provisions of this Agreementevent that:
(i) on any date on which the Adjusted Eurodollar Rate would otherwise be set, the Borrowers Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to Interbank Offered Rate, or
(ii) at any time the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify have determined in good faith (which determination shall be final and conclusive) that:
(A) the Lead Borrower and making or continuation of or conversion of any Loan to a Eurodollar Loan has been made impracticable or unlawful by (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and Interbank Eurodollar market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or compliance by any change Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(B) the Adjusted Eurodollar Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the Interbank Eurodollar market for deposits in which it regularly participates; then, and in any such event, the Agent shall forthwith so notify the Company thereof. Until the Agent notifies the Company that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow selection by the Borrowers of a Eurodollar Loan affected by the contingencies described in this Section 2.8(a) (Aherein called "Affected Loans") impose-------------- shall be suspended. If at the time the Agent so notifies the Company, modify the Company has previously given the Agent a Notice of Borrowing or deem Conversion with respect to one or more Affected Loans but such Loans have not yet gone into effect, such notification shall be deemed to be void and the Borrowers may borrow Loans of a non-affected type by giving a substitute Notice of Borrowing or Conversion Pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given) the Company shall, with respect to the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be paid pursuant to Section 2.13, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or Conversion pursuant to Section 2.2 hereof.
(b) In case any law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects any Lender to any tax not in effect on the date hereof with respect to payments of principal or interest or any other amounts payable hereunder by the Company or otherwise with respect to the transactions contemplated hereby (except for taxes on the overall net income of such Lender imposed by the United States of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder Lender (other than a change such requirements as are already included in the taxation determination of the overall net income of the Agent or the LendersAdjusted Eurodollar Rate); or , or
(Ciii) impose on the Agent or the Lenders imposes upon any Lender any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereofwith respect to its performance under this Agreement, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to such Lender, reduce the amount of principal income receivable by such Lender or interest received by impose any expense upon such Lender with respect to any outstanding Eurodollar Loans, such Lender shall notify the Agent or Lenders hereunderCompany thereof. The Borrowers, then the Borrowers shall jointly and severally, agrees to pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation increase in cost, reduction in income or additional expense as and will notwhen such cost, in the reasonable opinion of such Lender (includingreduction or expense is incurred or determined, without limitation, upon presentation by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of a statement in the amount of and setting forth such costs Lender's calculation thereof, which statement shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery deemed true and the basis therefor shall be conclusive correct absent manifest error.
Appears in 1 contract
Samples: Credit Agreement (Brookstone Inc)
Changed Circumstances. (a) Subject to the provisions of this Agreement, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, in good faith (which determination shall be conclusive), prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(ci) If, after the date hereof, the introduction of, or any change in in, any applicable law, treaty, rule, regulation or guideline law or in the interpretation or administration thereof by any governmental authority or any authority, central bank or other fiscalcomparable agency charged with the interpretation or administration thereof, monetary or other authority having jurisdiction over the Agent, the Lenders compliance by Bank with any request or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change directive (whether or not having the force of law) of such governmental authority, central bank or comparable agency:
1. shall subject Bank to any tax, duty or other charge with respect to this Note or shall change the basis of taxation of payments to Bank of the principal of or interest on this Note or any other amounts due in respect thereof (A) except for changes in the rate of tax on the overall net income of Bank imposed by any governmental authority); or
2. shall impose, modify or deem applicable any assessmentreserve (including, reservewithout limitation, any reserve imposed by the Federal Reserve Board), special deposit or similar requirement against assets held byof the Bank, or deposits in with or for the account of or loans byBank, or any other acquisition of funds credit extended by Bank, or disbursements by, the Agent shall impose on Bank or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders foreign exchange and interbank markets any other condition regarding affecting the Index Loans or the Agent’s or Lenders’ funding thereof, Note; and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to the Agent or the Lenders Bank of making or maintaining the Index Loans or any LIBOR-Based Rate or; to reduce the amount of principal any sum received or receivable by Bank under this Note in respect of interest received by at the Agent or Lenders hereunder, LIBOR-Based Rate; then the Borrowers Bank shall promptly notify Borrower of such fact and demand compensation therefor and, within fifteen (15) days after such notice by Bank, Borrower agrees to pay to the Agent or the Lenders, on demand, Bank such additional amount or amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to will compensate and indemnify the Agent or Lenders from Bank for such increased cost or reduced amountreduction. Each Lender Bank will use reasonable efforts promptly notify Borrower of any event of which it has knowledge which will entitle Bank to designate a different lending office for compensation pursuant to this Subparagraph 2.4 (j); provided, however, that Bank shall incur no liability whatsoever to Borrower in the Liabilities if such designation will avoid the need for, or reduce the event it fails to do so. The amount of such compensation shall be determined, by the Bank, as the amount actually incurred by the Bank as a result of the foregoing. Bank's calculations of any such loss or expense shall be furnished to Borrower and will notshall be prima evidence thereof.
(ii) If, at any time, Bank shall determine in the reasonable opinion of such Lender (including, without limitationgood faith that, by reason of any economiccircumstances affecting the foreign exchange and interbank markets generally, legaldeposits in Dollars or Optional Currency in the applicable amounts are not being offered to Bank, then Bank shall promptly give notice thereof to Borrower. Thereafter, until Bank notifies Borrower that such circumstances no longer exist, the obligation of Bank to make the LIBOR-Based Rate available to Borrower shall be suspended, and Borrower shall subject to the following sentence hereof, repay in full the then outstanding principal amount of each portion of an Optional Currency Advance together with accrued interest thereon or in the case of a Dollar Advance bearing interest at a LIBOR Rate repay the Loan in full, together with interest accrued therein and amounts owed under Section 2.4(i), or regulatory cost convert such LIBOR-Based Rate to a Prime-Based Rate in the case of a Dollar Advance. Notwithstanding the foregoing, in the event that the Bank determines that Optional Currency is not available to it, the Bank will make a good faith effort to convert any outstanding Optional Currency Advance to a Dollar Advance, and the Borrower shall be responsible for paying all costs or disadvantage that expenses arising from such Lender may bear or suffer by reason of such designation)conversion, including those set forth in Section 2.4(i) hereof.
(fiii) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to If, after the Index Loans free and clear date hereof, the introduction of, and without deduction foror any change in, any Taxesapplicable law or in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by Bank with any request or directive (whether or not having the force of law) of any such governmental authority, central bank or comparable agency, shall make it unlawful or impossible for Bank to honor its obligations hereunder to make or maintain any LIBOR-Based Rate or make an Optional Currency Advance, Bank shall promptly give notice thereof to Borrower. If Thereafter, until Bank notifies Borrower that such circumstances no longer exists, (A) the Agent obligations of Bank to make available the LIBOR-Based Rate or Optional Currency Advances and the right of Borrower to convert any Lender rate to a LIBOR-Based Rate or receive Optional Currency Advances shall be subject to any Tax in respect of any Index Loans or any part thereof orsuspended, and (B) if Bank may not lawfully continue to maintain a LIBOR-Based Rate or extend Optional Currency Advances, as the Borrowers case may be, to the end of the then current Interest Period applicable thereto, the applicable LIBOR-Based Rate in the case of a Dollar Advance shall immediately be converted to a Prime-Based Rate for the remainder of such Interest Period, and the Loan shall, subject to the following sentence hereof, be immediately due in the event of an Optional Currency Advance. Notwithstanding the foregoing, in the event that the Bank determines that Optional Currency is not available to it, the Bank will make a good faith effort to convert any outstanding Optional Currency Advance to a Dollar Advance, and the Borrower shall be required responsible for paying all costs or expenses arising from such conversion, including those set forth in Section 2.4(i) hereof.
(iv) The provisions of Sections 2.4 (i) and (j) shall similarly inure to withhold the benefit to any party to whom the Lender sells an interest, or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lenderparticipates on interest herein, as applicable, shall reimburse the Borrowers authorized pursuant to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorSection 8.9 hereof.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) Subject to on any date on which the provisions of this Agreement, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans Applicable LIBOR Rate would otherwise be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if set the Administrative Agent or the Lenders determines, shall have determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest LIBOR Rate, as applicable; or
(b) at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), any time the Administrative Agent shall promptly notify the Lead Borrower and have determined in good faith (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans which determination shall be made until such circumstances are cured.final and conclusive) that
(ci) If, after the date hereof, implementation of LIBOR Pricing Option has been made impracticable or unlawful by (A) the introduction ofoccurrence of a contingency that materially and adversely affects the London interbank market, or (B) compliance by any change Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof by or with any governmental authority request or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day directive of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change Governmental Authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or no longer represent the effective cost to the Lenders for U.S. dollar deposits in or the London interbank market, as applicable for the account of or loans bydeposits in which they regularly participate; then, or any other acquisition of funds or disbursements byand in such event, the Administrative Agent or shall forthwith so notify the Lenders; (B) subject Borrower thereof. Until the AgentAdministrative Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the Lenders or the Index Loans to any Tax or change the basis obligation of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding allow election by the Borrowers of such Tax and a LIBOR Pricing Option shall be suspended. If at the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by time the Administrative Agent or such Lender of so notifies the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such LenderBorrowers, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of have previously given the Administrative Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such Lender setting forth date as shall be specified in such notice (which shall not be earlier than the amount of date such recovery notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated and the basis therefor Borrowers, jointly and severally, shall pay all interest due on such LIBOR Rate Loans and any amounts required to be conclusive absent manifest errorpaid pursuant to Section 4.6.
Appears in 1 contract
Changed Circumstances. (a) Subject to The Agent may give the provisions Borrower notice of this Agreement, the Borrowers occurrence of the following:
(i) The Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive)) on any day on which the rate for a Eurodollar Loan would otherwise be set, prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(cii) If, after The Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(A) The continuation of or conversion of any Revolving Credit Loan to a Eurodollar Loan has been made impracticable or unlawful by the date hereof, occurrence of a contingency that materially and adversely affects the introduction of, applicable market or compliance by the Agent or any change Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; ).
(B) subject The indices on which the Agent, interest rates for Eurodollar Loans are based shall no longer represent the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or any Lender for U.S. dollar deposits in the Lenders interbank market for deposits in which it regularly participates.
(b) In the event that the Agent gives the Borrower notice of making or maintaining an occurrence described in Section 2-21(a), then, until the Index Agent notifies the Borrower that the circumstances giving rise to such notice no longer apply:
(i) The obligation of the Agent and of each Lender to make Eurodollar Loans of the type affected by such changed circumstances or to reduce permit the amount of principal or Borrower to select the affected interest received by rate as otherwise applicable to any Revolving Credit Loans shall be suspended.
(ii) Any notice which the Borrower had given the Agent or Lenders hereunderwith respect to any Eurodollar Loan, then the Borrowers shall pay time for action with respect to which has not occurred prior to the Agent or Agent's having given notice pursuant to Section 2-21(a), shall be deemed to be a request for a Base Margin Loan.
(c) Notwithstanding the Lendersforegoing, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time each Lender agrees to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and so long as such efforts would not be disadvantageous to it, in its reasonable discretion, in any legal, economic or regulatory manner) to designate a different lending office for if the Liabilities if making of such designation will avoid would allow the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers its lending office to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorcontinue to make Eurodollar Loans.
Appears in 1 contract
Changed Circumstances. (a) Subject to In the provisions of this Agreement, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.event that:
(bi) The Administrative Agent’s determination of on any date on which the Index Adjusted LIBOR Rate as provided above shall would otherwise be conclusive. Furthermore, if set the Administrative Agent or the Lenders determines, shall have determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to Interbank Offered Rate, as the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest case may be, or
(ii) at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), any time the Administrative Agent shall promptly notify have determined in good faith (which determination shall be final and conclusive) that:
(A) the Lead Borrower and making or continuation of, or conversion of any Loan to, a LIBOR Loan has been made impracticable or unlawful by (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and London interbank market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, Administrative Agent or any change Bank in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(B) the Adjusted LIBOR Rate shall no longer represent the effective cost to any Bank for United States dollar deposits in the London interbank market;
(a) (herein called "AFFECTED LOANS") shall be suspended. If at the time the Administrative Agent so notifies the Borrower, the Borrower has previously given the Administrative Agent a Notice of Borrowing or Conversion with respect to one or more Affected Loans but such Loans have not yet gone into effect, such notification shall be deemed to be void and the Borrower may borrow Loans of a non-affected type by giving a substitute Notice of Borrowing or Conversion pursuant to Section 2.4. Upon such date as shall be specified in such notice (Awhich shall not be earlier than the date such notice is given) imposethe Borrower shall, modify with respect to the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be paid pursuant to Section 2.15, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or deem Conversion pursuant to Section 2.4 hereof. The provisions of this Section 2.10(a) shall be applied to the Borrower so as not to discriminate against the Borrower vis-a-vis other customers of the applicable Bank.
(b) In case any law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects the Administrative Agent or any Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrower or otherwise with respect to the transactions contemplated hereby (except for taxes on the overall net income of the Administrative Agent or such Bank imposed by the United States of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine any Bank (which other than such requirements as are already included in the determination shall be conclusiveof the Adjusted LIBOR Rate), or
(iii) that imposes upon the Administrative Agent or any Bank any other condition with respect to its performance under this Agreement or any other Loan Document, and the result of any of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shallsuch Bank, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted income receivable by the Administrative Agent or such Lender to reflect all additional costs incurred by Bank or impose any expense upon the Administrative Agent or such Lender in connection Bank with respect to any Loans or any payments made under or with respect to the payment by Letters of Credit, the Administrative Agent shall promptly notify the Borrower thereof. The Borrower agrees to pay to the Administrative Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing Bank the amount of any such Tax actually paid by the Borrowers. Determination increase in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by the Administrative Agent or such Lender Bank of the amount a written statement of such costs amount and setting forth in reasonable detail the Administrative Agent's or such Bank's calculation thereof, which statement shall be conclusive deemed true and correct absent manifest error. If after any such adjustment any part The provisions of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, this Section 2.10(b) shall reimburse the Borrowers be applied to the extent Borrower so as not to discriminate against the Borrower vis-a-vis other customers of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorapplicable Bank.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Mac-Gray Corp)
Changed Circumstances. In the event that: (a) Subject to on any day on which the provisions of this Agreementrate for a LIBOR Loan would other wise be set, the Borrowers Lender shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining such rate; or (b) at any time the rate Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the continuation of interest to be applicable to the or conversion of any Revolving Credit Loans requested Loan to a LIBOR Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the applicable market or (B) compliance by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth Lender in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (Cii) impose the indices on which the Agent or interest rates for LIBOR Loan shall no longer represent the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or Lender for U.S. dollar deposits in the Lenders interbank market for deposits in which it regularly participates; then, and in any such event, the Lender shall forthwith so notify the Lead Borrower thereof. Until the Lender notifies the Lead Borrower that the circumstances giving rise to such notice no longer apply, the obli- gation of making or maintaining the Index Lender to make LIBOR Loans of the type affected by such changed circumstances or to reduce permit the amount of principal Lead Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended. If at the time the Lender so notifies the Lead Borrower, the Lead Borrower has previously given the Lender a Renewal/Conversion Notice with respect to one or interest received by the Agent or Lenders hereundermore LIBOR Loans, then the Borrowers shall pay to the Agent or the Lenders, on demandbut such Revolving Credit Loans have not yet gone into effect, such additional amounts as notifi cation shall be deemed to be void and the Administrative Agent or Lead Borrower may borrow Revolving Credit Loans which are Base Margin Loans by giving a sub stitute Renewal/Conversion Notice. Upon the Lenders shallexpiration of the Interest Period for any LIBOR Loan which is outstanding on the date of such notification, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation)LIBOR Loan shall thereafter constitute a Base Margin Loan.
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest error.
Appears in 1 contract
Changed Circumstances. (a) Subject to In the provisions of this Agreement, event that:
(1) on any date on which the Borrowers Adjusted LIBOR Rate would otherwise be set the BANK shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate Interbank Offered Rate, or
(2) at any time the BANK shall have determined in good faith (which determination shall be final and conclusive) that:
(a) the making or continuation of interest to be applicable to the Revolving Credit Loans requested Loan as a LIBOR Loan has been made impracticable or unlawful by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and interbank LIBOR market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, or any change BANK in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or or
(Cb) impose on the Agent or Adjusted LIBOR Rate shall no longer represent the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or BANK for U.S. dollar deposits in the Lenders interbank market for deposits in which it regularly participates; then, and in any such event, the BANK shall forthwith so notify the BORROWER thereof. Until the BANK notifies the BORROWER that the circumstances giving rise to such notice no longer apply, the obligation of making or maintaining the Index Loans or BANK to reduce the amount of principal or interest received allow selection by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount BORROWER of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index LIBOR Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest errorsuspended. If after any such adjustment any part of any Tax paid by at the Agent or such Lender is subsequently recovered by time the Agent or such LenderBANK so notifies the BORROWER, the Agent or such Lender, as applicable, shall reimburse BORROWER has previously given the Borrowers to the extent BANK a Notice of the amount so recovered. A certificate Borrowing and/or Selection of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest error.Interest Period with
Appears in 1 contract
Samples: Loan Agreement (Galileo Corp)
Changed Circumstances. (a) Subject to If the provisions introduction of this Agreement, the Borrowers shall have the option (A) as of any date, to convert all or any part change in or in the interpretation of Base Margin Loans to(in each case, after the date hereof) any law or regulation makes it unlawful, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, in good faith (which determination shall be conclusive), prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) IfGovernmental Authority asserts, after the date hereof, the introduction ofthat it is unlawful, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders Lender to perform its obligations hereunder to make or maintain Index LIBOR Loans, then the Administrative Agent Lender shall promptly notify the Lead Borrower Borrowers of such event, and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day right of the then existing Borrowers to select LIBOR Loans for any subsequent Interest Period or on such earlier date as required by law and (B) no additional Index Loans in connection with any subsequent conversion of any Loan shall be made suspended until the Lender shall notify the Borrowers that the circumstances causing such circumstance suspension no longer exist, and, if it is cured.
(d) If, for any reason, an Index Loan is paid prior unlawful to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders)maintain LIBOR Loans, the Borrowers agree to indemnify shall forthwith prepay in full all LIBOR Revolving Credit Loans then outstanding and shall convert each LIBOR Term Loan into a Prime Rate Term Loan, and shall pay all interest accrued thereon through the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result date of such prepayment or failure to occur.conversion; provided, that if the date of such repayment or proposed conversion is not the last
(eb) If the Lender shall, prior to the disbursement of any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent requested Revolving Credit Loan or the Lenders; effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a LIBOR Loan (B) subject the Agenteach such requested Revolving Credit Loan made and Loan to be converted or continued, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from a "Pending Loan"), notify the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase LIBOR will not adequately reflect the cost to the Agent or the Lenders Lender of making or maintaining funding such Pending Loan as a LIBOR Loan or that the Index Loans or to reduce the amount Interbank Offered Rate is not determinable from any interest rate reporting service of principal or interest received by the Agent or Lenders hereunderrecognized standing, then the right of the Borrowers shall pay to the Agent or the Lendersselect LIBOR Loans for such Pending Loan, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need forany subsequent Revolving Credit Loan, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with any subsequent conversion or continuation of any Loan, shall be suspended until the payment by the Agent or such Lender or the withholding by shall notify the Borrowers of that the circumstances causing such Tax suspension no longer exist, and the Borrowers shall provide the Agent each Loan comprising each Pending Loan and each such subsequent Loan requested to be made, continued or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs converted shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent made or such Lender is subsequently recovered by the Agent continued as or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorconverted into a Prime Rate Loan.
Appears in 1 contract
Changed Circumstances. (a) Subject to the provisions of this Agreement, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, in good faith (which determination shall be conclusive), prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(ci) If, after the date hereof, the introduction of, or any change in in, any applicable law, treaty, rule, regulation or guideline law or in the interpretation or administration thereof by any governmental authority or any authority, central bank or other fiscalcomparable agency charged with the interpretation or administration thereof, monetary or other authority having jurisdiction over the Agent, the Lenders compliance by Bank with any request or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change directive (whether or not having the force of law) of such governmental authority, central bank or comparable agency:
(1) shall subject Bank to any tax, duty or other charge with respect to this Note or shall change the basis of taxation of payments to Bank of the principal of or interest on this Note or any other amounts due in respect thereof (Aexcept for changes in the rate of tax on the overall net income of Bank imposed by any governmental authority); or
(2) shall impose, modify or deem applicable any assessmentreserve (including, reservewithout limitation, any reserve imposed by the Federal Reserve Board), special deposit or similar requirement against assets held byof the Bank, or deposits in with or for the account of or loans bythe Bank, or any other acquisition of funds credit extended by Bank, or disbursements by, the Agent shall impose on Bank or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders foreign exchange and interbank markets any other condition regarding affecting the Index Loans or the Agent’s or Lenders’ funding thereof, Note; and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to the Agent or the Lenders Bank of making or maintaining the Index Loans or any LIBOR-Based Rate or; to reduce the amount of principal any sum received or receivable by Bank under the Note in respect of interest received by at the Agent or Lenders hereunder, LIBOR-Based Rate; then the Borrowers Bank shall promptly notify Borrower of such fact and demand compensation therefor and, within fifteen (15) days after such notice by Bank, Borrower agrees to pay to the Agent or the Lenders, on demand, Bank such additional amount or amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to will compensate and indemnify the Agent or Lenders from Bank for such increased cost or reduced amountreduction. Each Lender Bank will use reasonable efforts promptly notify Borrower of any event of which it has knowledge which will entitle Bank to designate a different lending office for compensation pursuant to this Subparagraph 2.4 (i); provided, however, that Bank shall incur no liability whatsoever to Borrower in the Liabilities if such designation will avoid the need for, or reduce the event it fails to do so. The amount of such compensation shall be determined, by the Bank, as the amount actually incurred by the Bank as a result of the foregoing. Bank's calculations of any such loss or expense shall be furnished to Borrower and will notshall be prima facie evidence thereof.
(ii) If, at any time, Bank shall determine in the reasonable opinion of such Lender (including, without limitationgood faith that, by reason of any economiccircumstances affecting the foreign exchange and interbank markets generally, legaldeposits in Optional Currency in the applicable amounts are not being offered to Bank, or regulatory cost or disadvantage then Bank shall promptly give notice thereof to Borrower. Thereafter, until Bank notifies Borrower that such Lender circumstances no longer exist, the obligation of Bank to make the LIBOR-Based Rate available to Borrower shall be suspended, and Borrower shall subject to the following sentence hereof, repay in full the then outstanding principal amount of the Loan together with accrued interest thereon together with amounts owed under Section 2.4(h). Notwithstanding the foregoing, in the event that the Bank determines that Optional Currency is not available to it, the Bank will make a good faith effort to convert the outstanding Advance to an Advance payable in Dollars and the Borrower shall be responsible for paying all costs or expenses arising from such conversion, including those set forth in Section 2.4(h) hereof. In the event the Bank is able to convert the Advance to an Advance payable in Dollars, the Borrower will sign such amendments to the Loan Documents as the Bank may bear or suffer by reason of such designation)reasonably request to make the Loan Documents consistent with the Bank's standard terms for LIBOR-Based Loans payable in Dollars.
(fiii) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to If, after the Index Loans free and clear date hereof, the introduction of, and without deduction foror any change in, any Taxesapplicable law or in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by Bank with any request or directive (whether or not having the force of law) of any such governmental authority, central bank or comparable agency, shall make it unlawful or impossible for Bank to honor its obligations hereunder to make or maintain any LIBOR-Based Rate or make an Optional Currency Advance, Bank shall promptly give notice thereof to Borrower. If Thereafter, until Bank notifies Borrower that such circumstances no longer exists, (A) the Agent obligations of Bank to make available the LIBOR-Based Rate or Optional Currency Advances and the right of Borrower to convert any Lender rate to a LIBOR-Based Rate or receive Optional Currency Advances shall be subject to any Tax in respect of any Index Loans or any part thereof orsuspended, and (B) if Bank may not lawfully continue to maintain a LIBOR-Based Rate or extend Optional Currency Advances, as the Borrowers case may be, to the end of the then current Interest Period applicable thereto, the Loan shall, subject to the following sentence hereof, be immediately due in the event of an Optional Currency Advance. Notwithstanding the foregoing, in the event that the Bank determines that Optional Currency is not available to it, the Bank will make a good faith effort to convert any outstanding Optional Currency Advance to a Dollar Advance, and the Borrower shall be required responsible for paying all costs or expenses arising from such conversion, including those set forth in Section 2.4(h) hereof. In the event the Bank is able to withhold or deduct any Tax from any such amountconvert the Advance to an Advance payable in Dollars, the Index Rate applicable Borrower will sign such amendments to such Index Loans shall be adjusted by the Administrative Agent or such Lender Loan Documents as the Bank may reasonably request to reflect all additional costs incurred by make the Agent or such Lender in connection Loan Documents consistent with the payment by Bank's standard terms for LIBOR-Based Loans payable in Dollars.
(iv) The provisions of Sections 2.4 (h) and (i) shall similarly inure to the Agent benefit to any party to whom the Lender sells an interest, or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lenderparticipates on interest herein, as applicable, shall reimburse the Borrowers authorized pursuant to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorSection 8.9 hereof.
Appears in 1 contract
Changed Circumstances. (a) Subject to the provisions of this Agreement, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, in good faith (which determination shall be conclusive), prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(ci) If, after the date hereof, the introduction of, or any change in in, any applicable law, treaty, rule, regulation or guideline law or in the interpretation or administration thereof by any governmental authority or any authority, central bank or other fiscalcomparable agency charged with the interpretation or administration thereof, monetary or other authority having jurisdiction over the Agent, the Lenders compliance by Bank with any request or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change directive (whether or not having the force of law) of such governmental authority, central bank or comparable agency:
(1) shall subject Bank to any tax, duty or other charge with respect to this Note or shall change the basis of taxation of payments to Bank of the principal of or interest on this Note or any other amounts due in respect thereof (Aexcept for changes in the rate of tax on the overall net income of Bank imposed by any governmental authority); or
(2) shall impose, modify or deem applicable any assessmentreserve (including, reservewithout limitation, any reserve imposed by the Federal Reserve Board), special deposit or similar requirement against assets held byof Bank, or deposits in with or for the account of or loans bycredit extended by Bank, or any other acquisition of funds or disbursements by, the Agent shall impose on Bank or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders foreign exchange and interbank markets any other condition regarding affecting the Index Loans or the Agent’s or Lenders’ funding thereof, Note; and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to the Agent or the Lenders Bank of making or maintaining the Index Loans or any LIBOR-Based Rate or; to reduce the amount of principal any sum received or receivable by Bank under the Note in respect of interest received by at the Agent or Lenders hereunder, LIBOR-Based Rate; then the Borrowers Bank shall promptly notify Borrower of such fact and demand compensation therefor and, within fifteen (15) days after such notice by Bank, Borrower agrees to pay to the Agent or the Lenders, on demand, Bank such additional amount or amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to will compensate and indemnify the Agent or Lenders from Bank for such increased cost or reduced amountreduction. Each Lender Bank will use reasonable efforts promptly notify Borrower of any event of which it has knowledge which will entitle Bank to designate a different lending office for compensation pursuant to this Subparagraph 2.4 (i); provided, however, that Bank shall incur no liability whatsoever to Borrower in the Liabilities if such designation will avoid the need for, or reduce the event it fails to do so. The amount of such compensation shall be determined, by the Bank, as the amount actually incurred by the Bank as a result of the foregoing. Bank's calculations of any such loss or expense shall be furnished to Borrower and will notshall be prima facie evidence thereof.
(ii) If, at any time, Bank shall determine in the reasonable opinion of such Lender (including, without limitationgood faith that, by reason of any economiccircumstances affecting the foreign exchange and interbank markets generally, legaldeposits in Optional Currency in the applicable amounts are not being offered to Bank, or regulatory cost or disadvantage then Bank shall promptly give notice thereof to Borrower. Thereafter, until Bank notifies Borrower that such Lender circumstances no longer exist, the obligation of Bank to make the LIBOR-Based Rate available to Borrower shall be suspended, and Borrower shall subject to the following sentence hereof, repay in full the then outstanding principal amount of the Loan together with accrued interest thereon together with amounts owed under Section 2.4(h). Notwithstanding the foregoing, in the event that the Bank determines that Optional Currency is not available to it, the Bank will make a good faith effort to convert the outstanding Advance to an Advance payable in Dollars, and the Borrower shall be responsible for paying all costs or expenses arising from such conversion, including those set forth in Section 2.4(h) hereof. In the event the Bank is able to convert the Advance to an Advance payable in Dollars, the Borrower will sign such amendments to the Loan Documents as the Bank may bear or suffer by reason of such designation)reasonably request to make the Loan Documents consistent with the Bank's standard terms for LIBOR-Based Loans payable in Dollars.
(fiii) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to If, after the Index Loans free and clear date hereof, the introduction of, and without deduction foror any change in, any Taxesapplicable law or in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by Bank with any request or directive (whether or not having the force of law) of any such governmental authority, central bank or comparable agency, shall make it unlawful or impossible for Bank to honor its obligations hereunder to make or maintain any LIBOR-Based Rate or make an Optional Currency Advance, Bank shall promptly give notice thereof to Borrower. If Thereafter, until Bank notifies Borrower that such circumstances no longer exists, (A) the Agent obligations of Bank to make available the LIBOR-Based Rate or Optional Currency Advances and the right of Borrower to convert any Lender rate to a LIBOR-Based Rate or receive Optional Currency Advances shall be subject to any Tax in respect of any Index Loans or any part thereof orsuspended, and (B) if Bank may not lawfully continue to maintain a LIBOR-Based Rate or extend Optional Currency Advances, as the Borrowers case may be, to the end of the then current Interest Period applicable thereto, the Loan shall, subject to the following sentence hereof, be immediately due in the event of an Optional Currency Advance. Notwithstanding the foregoing, in the event that the Bank determines that Optional Currency is not available to it, the Bank will make a good faith effort to convert any outstanding Optional Currency Advance to a Dollar Advance, and the Borrower shall be required responsible for paying all costs or expenses arising from such conversion, including those set forth in Section 2.4(i) hereof. In the event the Bank is able to withhold or deduct any Tax from any such amountconvert the Advance to an Advance payable in Dollars, the Index Rate applicable Borrower will sign such amendments to such Index Loans shall be adjusted by the Administrative Agent or such Lender Loan Documents as the Bank may reasonably request to reflect all additional costs incurred by make the Agent or such Lender in connection Loan Documents consistent with the payment by Bank's standard terms for LIBOR-Based Loans payable in Dollars.
(iv) The provisions of Sections 2.4 (h) and (i) shall similarly inure to the Agent benefit to any party to whom the Lender sells an interest, or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lenderparticipates on interest herein, as applicable, shall reimburse the Borrowers authorized pursuant to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorSection 8.9 hereof.
Appears in 1 contract
Changed Circumstances. (a) Subject to In the provisions of this Agreement, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.event that:
(bi) The Administrative Agent’s determination of on any date on which the Index LIBOR Rate as provided above shall would otherwise be conclusive. Furthermore, if set the Administrative Agent or the Lenders determines, shall have reasonably determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest LIBOR Base, or
(ii) at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), any time the Administrative Agent shall promptly notify have reasonably determined in good faith (which determination shall be final and conclusive) that:
(A) the Lead Borrower and making or continuation of or conversion of any Loan to a LIBOR Loan has been made impracticable or unlawful by (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and interbank market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, Administrative Agent or any change Bank in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any governmental authority request or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day directive of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders)such governmental authority, the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall law (A) imposein any such case, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lendersa "Legal Impediment"); or
(B) subject the Agent, LIBOR Rate shall no longer represent the Lenders or the Index Loans effective cost to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine any Bank for United States dollar deposits in the interbank market for deposits in which it regularly participates; or
(which determination shall be conclusiveC) that U.S. dollar deposits in immediately available funds in an amount approximately equal to the result outstanding principal balance of the foregoing is to increase the cost Line of Credit are not readily available to the Agent or Administrative Agent's Eurodollar Office for delivery on the Lenders first day of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunderany Interest Period; then, then the Borrowers shall pay to the Agent or the Lendersand in any such event, on demand, such additional amounts as the Administrative Agent shall forthwith so notify the Company by facsimile notice at least one day prior to (i) the date that the LIBOR Rate is to be set, (ii) the commencement date of the applicable Interest Period or (iii) the Lenders shall, from time to time, determine are sufficient to compensate and indemnify occurrence of the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear ofapplicable event, and without deduction for, any Taxes. If (A) the Agent or any Lender Interest Rate shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) become the Borrowers Prime Rate and shall be required to withhold or deduct any Tax from any such amount, remain the Index Prime Rate applicable to such Index Loans shall be adjusted by until the Administrative Agent or determines and so notifies the Company that the circumstances giving rise to such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowersnotice no longer apply. Determination by Until the Administrative Agent or notifies the Company that the circumstances giving rise to such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lendernotice no longer apply, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer obligation of the Administrative Agent or such Lender setting forth to allow selection by the amount Company of a LIBOR Loan (during the occurrence of such recovery circumstances, referred to as "Affected Loans") shall be suspended. If at the time the Administrative Agent so notifies the Company, the Company has previously given the Administrative Agent a Notice of Borrowing or a Notice of Continuation or Conversion with respect to one or more Affected Loans but such borrowing or conversion has not yet gone into effect, such notification shall be deemed to be void and the basis Company may only borrow or convert to a Prime Rate Loan. If as a result of a Legal Impediment, the Administrative Agent and/or any Bank shall incur Breakage Costs in converting from a LIBOR Loan, then the Company shall pay all such Breakage Costs to the Administrative Agent promptly upon its demand therefor shall be conclusive absent manifest errorfor its account and/or the account of any such Bank.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) Subject to on any date on which the provisions of this Agreement, Applicable LIBOR Rate would otherwise be set the Borrowers Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of interest to be applicable to LIBOR Pricing Option has been made impracticable or unlawful by (A) the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits occurrence of a comparable amount for contingency that materially and adversely affects the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction ofLondon interbank market, or (B) compliance by any change Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(ii) the LIBOR Rate shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or no longer represent the effective cost to the Lenders for U.S. dollar deposits in or the London interbank market, as applicable for the account of or loans bydeposits in which they regularly participate; then, or any other acquisition of funds or disbursements byand in such event, the Agent or shall forthwith so notify the Lenders; (B) subject Borrower thereof. Until the AgentAgent notifies the Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to and the Agent or to allow election by the Lenders Borrower of principal or interest due from a LIBOR Pricing Option shall be suspended. If at the Borrowers to time the Agent or so notifies the Lenders hereunder (other than a change in Borrower, the taxation of the overall net income of Borrower has previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination effect. Upon such date as shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received specified in such notice given by the Agent or Lenders hereunder(which shall not be earlier than the date such notice is given), then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest LIBOR Pricing Option with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index all LIBOR Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax terminated and the Borrowers Borrower shall provide the Agent or pay all interest due on such Lender with a statement detailing the amount of LIBOR Rate Loans and any such Tax actually amounts required to be paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers pursuant to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorSection 4.6.
Appears in 1 contract
Samples: Credit Agreement (Saucony Inc)
Changed Circumstances. In the event that:
(a) Subject to on any date on which the provisions of this Agreement, Applicable LIBOR Rate would otherwise be set the Borrowers Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which good faith determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which good faith determination shall be final and conclusive) that
(i) the implementation of interest to be applicable to LIBOR Pricing Option has been made impracticable or unlawful by (A) the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits occurrence of a comparable amount for contingency that materially and adversely affects the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction ofLondon interbank market, or (B) compliance by any change Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof by or with any governmental authority request or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day directive of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change Governmental Authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall (A) imposeno longer represent the effective cost to the Lenders of obtaining the relevant currency in the London interbank market, modify or deem as applicable any assessment, reserve, special deposit or similar requirement against assets held by, or for deposits in or for the account of or loans bywhich they regularly participate; then, or any other acquisition of funds or disbursements byand in such event, the Agent shall forthwith so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply (which notice the Agent agrees to give at or about the Lenders; (B) subject the Agentsame time that it gives similar notices to its customers similarly situated), the obligation of the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to and the Agent or the Lenders of principal or interest due from to allow election by the Borrowers to of a LIBOR Pricing Option shall be suspended. If at the time the Agent or so notifies the Lenders hereunder (other than a change in Borrowers, the taxation of the overall net income of Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders effect. Upon such date as shall determine be specified in such notice (which determination shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then terminated and the Borrowers shall pay all interest due on such LIBOR Rate Loans and any amounts required to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time be paid pursuant to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, Section 4.3 (except in the reasonable opinion case of the termination of LIBOR Loans pursuant to Section 2.16(b)(ii) in which case such Lender (including, without limitation, by reason LIBOR Loans shall continue until the end of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designationthe applicable Interest Period).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest error.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Gerber Scientific Inc)
Changed Circumstances. (a) Subject to the provisions of this AgreementBorrower agrees that if (i) any law hereafter in effect or (ii) any request, the Borrowers shall have the option (A) as guideline or directive of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, in good faith (which determination shall be conclusive), prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change Governmental Authority (whether or not having the force of lawlaw and whether or not failure to comply therewith would be unlawful) not in effect as of the Effective Date with respect to any law now or hereafter in effect (and whether or not any such law is presently applicable to any Lender) or the interpretation or administration thereof by any Governmental Authority, shall either (A) (1) impose, affect, modify or deem applicable any assessment, reserve, special deposit deposit, capital maintenance or similar requirement against assets held byany Advance, or deposits in or for the account of or loans by, or (2) impose on such Lender any other acquisition of funds or disbursements bycondition regarding any Advance, the Agent this Agreement, any Note or the Lenders; facilities provided hereunder or (3) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting such Lender being imposed or modified or deemed applicable to such Lender or (B) subject the Agent, the Lenders or the Index Loans such Lender to any Tax taxes on the recording, registration, notarization or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation formalization of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Revolving Credit Loans or the Agent’s or Lenders’ funding thereofany Note, and the Administrative Agent result of any event referred to in CLAUSE (I) or Lenders shall determine (which determination II) above shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders such Lender of making making, funding or maintaining the Index Loans any Advance or to reduce the amount of principal any sum receivable by such Lender or interest received such Lender's rate of return on capital with respect to any Advance to a level below that which such Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration such Lender's policies with respect to capital adequacy) by the Agent or Lenders hereunderan amount deemed by such Lender to be material, then the Borrowers then, upon demand by such Lender, Borrower shall immediately pay to the Agent or the Lenders, on demand, such Lender additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are which shall be sufficient to compensate and indemnify the Agent or Lenders from such Lender for such increased cost cost, tax or reduced amountrate of return. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion A certificate of such Lender (includingto the Borrower claiming compensation under this SECTION 4.8 shall be final, without limitationconclusive and binding on all parties for all purposes in the absence of manifest error. Such certificate shall set forth the nature of the occurrence giving rise to such compensation, the additional amount or amounts to be paid to it hereunder and the method by reason of any economicwhich such amounts were determined. In determining such amount, legal, or regulatory cost or disadvantage that such Lender may bear use any reasonable averaging and attribution methods.
(b) If the introduction of or suffer by reason any change in or in the interpretation of (in each case, after the date hereof) any law or regulation makes it unlawful, or any Governmental Authority asserts, after the date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make LIBOR Advances or to fund or maintain LIBOR Advances hereunder, such Lender shall notify the Agent of such designationevent and the Agent shall notify the Borrower of such event, and the right of the Borrower to select LIBOR Advances for any subsequent Interest Period or in connection with any subsequent conversion of any Advance shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full all LIBOR Advances then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three (3) Business Days after such notice from the Agent, requests the conversion of all outstanding LIBOR Advances into Prime Advances; provided that, if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such LIBOR Advances, the Borrower shall also pay any amount due pursuant to SECTION 4.1(A)(III).
(fc) The If the Agent and Lenders shall receive payments shall, at least one (1) Business Day before the date of amounts any requested Advance or the effective date of principal any conversion or continuation of and interest with respect an existing Advance to be made or continued as or converted into a LIBOR Advance (each such requested Advance made and/or to be converted or continued, a "Pending Advance"), notify the Borrower that the LIBOR Advance will not adequately reflect the cost to the Index Loans free and clear ofLenders of making or funding such Pending Advance as a LIBOR Advance or that LIBOR is not determinable from any interest rate reporting service of recognized standing, and without deduction forthen the right of the Borrower to select LIBOR Advances for such Pending Advance, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender subsequent Advances in connection with the payment by any subsequent conversion or continuation of any Advance shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and Pending Advances and each such subsequent Advance requested to be made, continued or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs converted shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent made or such Lender is subsequently recovered by the Agent continued as, or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorconverted into a Prime Advance.
Appears in 1 contract
Samples: Loan and Security Agreement (Loehmanns Holdings Inc)
Changed Circumstances. (ai) Subject to The Lender may give the provisions Borrower notice of this Agreement, the Borrowers shall have occurrence of the option following:
(A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above Lender shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, have determined in good faith (which determination shall be final and conclusive)) on any day on which the rate for a Eurodollar Loan would otherwise be set, prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to such rate.
(B) The Lender shall have determined in good faith (which determination shall be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower final and conclusive) that:
(1) all existing Index Loans shall convert The continuation of or conversion of any Revolving Credit Loan to Base Margin Loans upon a Eurodollar Loan has been made impracticable or unlawful by the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after market or compliance by the date hereof, the introduction of, or any change Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law).
(2) The indices on which the interest rates for Eurodollar Loans are based shall no longer represent the effective cost to the Lender for U.S. dollar deposits in the interbank market for deposits in which it regularly participates.
(ii) In the event that the Lender gives the Borrower notice of an occurrence described in Section 2-21(a), then, until the Lender notifies the Borrower that the circumstances giving rise to such notice no longer apply:
(A) impose, modify The obligation of the Lender to make Eurodollar Loans of the type affected by such changed circumstances or deem to permit the Borrower to select the affected interest rate as otherwise applicable to any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; Revolving Credit Loans shall be suspended.
(B) subject Any notice which the AgentBorrower had given the Lender with respect to any Eurodollar Loan, the Lenders or the Index Loans time for action with respect to any Tax or change the basis of taxation of payments which has not occurred prior to the Agent or the Lenders of principal or interest due from the Borrowers Lender’s having given notice pursuant to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the LendersSection 2-21(a); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusivedeemed to be a request for a Base Rate Loan.
(iii) that Notwithstanding the result of foregoing, the foregoing is Lender agrees to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and so long as such efforts would not be disadvantageous to it, in its reasonable discretion, in any legal, economic or regulatory manner) to designate a different lending office for if the Liabilities if making of such designation will avoid would allow the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers its lending office to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorcontinue to make Eurodollar Loans.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) Subject to on any date on which the provisions of this Agreement, Applicable LIBOR Rate would otherwise be set the Borrowers Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which good faith determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which good faith determination shall be final and conclusive) that
(i) the implementation of interest to be applicable to LIBOR Pricing Option has been made impracticable or unlawful by (A) the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits occurrence of a comparable amount for contingency that materially and adversely affects the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction ofLondon interbank market, or (B) compliance by any change Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(ii) the LIBOR Rate shall (A) imposeno longer represent the effective cost to the Lenders of obtaining the relevant currency in the London interbank market, modify or deem as applicable any assessment, reserve, special deposit or similar requirement against assets held by, or for deposits in or for the account of or loans bywhich they regularly participate; then, or any other acquisition of funds or disbursements byand in such event, the Agent or shall forthwith so notify the Lenders; (B) subject Borrowers thereof. Until the AgentAgent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to and the Agent or the Lenders of principal or interest due from to allow election by the Borrowers to of a LIBOR Pricing Option shall be suspended. If at the time the Agent or so notifies the Lenders hereunder (other than a change in Borrowers, the taxation of the overall net income of Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders effect. Upon such date as shall determine be specified in such notice (which determination shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then terminated and the Borrowers shall pay all interest due on such LIBOR Rate Loans and any amounts required to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time be paid pursuant to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, Section 4.3 (except in the reasonable opinion case of the termination of LIBOR Loans pursuant to Section 2.16(b)(ii) in which case such Lender (including, without limitation, by reason LIBOR Loans shall continue until the end of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designationthe applicable Interest Period).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest error.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Gerber Scientific Inc)
Changed Circumstances. (a) Subject to In the provisions event that:
(i) on any date on which the Eurodollar Rate would otherwise be set, Bank of this Agreement, the Borrowers Boston shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair reasonable means do not exist for ascertaining the rate of interest to Eurodollar Rate, or
(ii) the Majority Lenders shall notify the Agent that they have determined in good faith (which determination shall be applicable to final and conclusive) that the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement Eurodollar Rate shall not no longer represent the effective pricing cost to the Administrative Majority Lenders of making or maintaining Eurodollar Advances to be made by them, or
(iii) any Lender shall notify the Agent for U.S. Dollar deposits that it has determined in good faith (which determination shall be final and conclusive) that the making or continuation of or conversion of any Advance of such Lender to a Eurodollar Advance has been made impracticable or unlawful by (A) the occurrence of a comparable amount for contingency that materially and adversely affects the relevant period interbank Eurodollar market or (B) compliance by such as for example, but not limited to, official reserve requirements required Lender in good faith with any Applicable Law or interpretation or change thereof by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) ); then, and in any such event, the Agent shall forthwith so notify the Borrower thereof and:
(A) imposeUntil the Agent notifies the Borrower that the circumstances giving rise to any notice given pursuant to SECTION 3.10(A) no longer apply, modify the obligation of the Lenders to allow selection by the Borrower of Eurodollar Advances shall be suspended. If at the time the Agent so notifies the Borrower, the Borrower has previously given the Agent a Notice of Borrowing or deem a Notice of Conversion or Continuation with respect to one or more Borrowings to be made as or to be converted into or continued as Borrowings comprised of Eurodollar Advances (each, a "Pending Borrowing") but such Pending Borrowings have not yet been so made, converted or continued, each such Notice shall be deemed to be an election by the Borrower of Borrowings comprised of Base Rate Advances.
(B) On such date as is specified in any notice to the Borrower from the Agent pursuant to SECTION 3.10(A) (which date shall not be earlier than the date such notice is given), the Borrower shall prepay the outstanding principal amount of all Eurodollar Advances, together with interest thereon and any amount required to be paid pursuant to SECTION 3.11, or convert all such outstanding Eurodollar Advances into Base Rate Advances by giving a Notice of Conversion or Continuation pursuant to SECTION 3.7(B).
(b) In case of any change in law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects any Lender to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrower or otherwise with respect to the transactions contemplated hereby (except for taxes on the overall net income of such Lender imposed by the United States of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder Lender (other than a change such requirements as are already provided for in the taxation of the overall net income of the Agent or the LendersSECTION 3.1(B)(II); or ), or
(Ciii) impose on the Agent or the Lenders imposes upon any Lender any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereofwith respect to its performance under this Agreement, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to such Lender, reduce the income receivable by such Lender or impose any expense upon such Lender with respect to any Advances, such Lender shall notify the Agent or and the Lenders of making or maintaining the Index Loans or Borrower thereof. The Borrower agrees to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation increase in cost, reduction in income or additional expense as and will notwhen such cost, in the reasonable opinion of reduction or expense is incurred or determined, upon presentation by such Lender (includingof a statement of the amount and setting forth such Lender's calculation thereof, without limitationwhich statement shall be deemed true and correct absent manifest error, by reason of PROVIDED, that no Lender shall be entitled to charge nor shall the Borrower be obligated to pay any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of amount relating to a period more than 90 days prior to the date on which such designation)statement is presented.
(fc) The Agent and Lenders shall receive payments If any Lender determines that (i) the adoption of amounts or change in, in each case after the date hereof, any law, rule, regulation or guideline regarding capital requirements for banks or bank holding companies, or any change after the date hereof in the interpretation or application thereof by any governmental authority charged with the administration thereof, or (ii) compliance by such Lender with any guideline, request or directive of principal any such entity regarding capital adequacy (whether or not having the force of and interest law) promulgated after the date hereof, has the effect of reducing the return on such Lender's capital as a consequence of its Commitment to make Advances hereunder to a level below that which such Lender could have achieved but for such adoption, change or compliance (taking into consideration such Lender's then- existing policies with respect to capital adequacy and assuming the Index Loans free and clear of, and without deduction for, full utilization of such Lender's capital) by any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted amount deemed by the Administrative Agent or such Lender to reflect all additional costs incurred by be material, then such Lender shall notify the Agent or and the Borrower thereof. The Borrower agrees to pay to such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs reduction of capital as and when such reduction is determined, upon presentation by such Lender of a statement of the amount and setting forth such Lender's calculation thereof, which statement shall be conclusive deemed true and correct absent manifest error. If after , PROVIDED, that no Lender shall be entitled to charge nor shall the Borrower be required to pay any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers amount relating to a period more than 90 days prior to the extent of the amount so recovereddate on which such statement is presented. A certificate of an officer of the Administrative Agent or In determining such amount, a Lender setting forth the amount of such recovery may use any reasonable averaging and the basis therefor shall be conclusive absent manifest errorattribution methods.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Synthetic Industries Inc)
Changed Circumstances. In the event that:
(a) Subject to on any date on which the provisions of this Agreement, Applicable LIBOR Rate would otherwise be set the Borrowers Bank shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate LIBOR Rate; or
(b) at any time the Bank shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of interest to be applicable to a LIBOR Pricing Option has been made impracticable or unlawful by (A) the Revolving Credit Loans requested occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth Bank in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in good faith with any applicable lawlaw or governmental or other applicable regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental or other authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or or
(Cii) impose on the Agent or LIBOR Rate shall no longer represent the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office Bank for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, U.S. dollar deposits in the reasonable opinion of such Lender (includingLondon interbank market, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear ofas applicable for deposits in which it regularly participates; then, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amountevent, the Index Rate applicable Bank shall forthwith so notify the Company thereof. Until the Bank notifies the Company that the circumstances giving rise to such Index Loans shall be adjusted by notice no longer apply, the Administrative Agent or such Lender obligation of the Bank to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Bank so notifies the Company, the Company has previously given the Bank a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Tax Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. If circumstances described in clause (b)(i)(B) arise, then upon such date as shall be specified in such notice (which shall not be earlier than the Borrowers date such notice is given), the LIBOR Pricing Option with respect to any new requests for LIBOR Rate Loans shall provide be terminated, but any existing LIBOR Rate Loans may continue to be maintained through the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender end of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorapplicable Interest Period.
Appears in 1 contract
Changed Circumstances. (a) Subject to In the provisions of this Agreement, event that:
(i) on any date on which the Borrowers Adjusted Eurodollar Rate would otherwise be set the Bank shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate Interbank Offered Rate, or
(ii) at any time the Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of interest or conversion of any Loan to be applicable to the Revolving Credit Loans requested a Eurodollar Loan has been made impracticable or unlawful by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and interbank Eurodollar market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, or any change Bank in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(B) the Adjusted Eurodollar Rate shall no longer represent the effective cost to the Bank for U.S. dollar deposits in the interbank market for deposits in which it regularly participates;
(a) (herein called "AFFECTED LOANS") shall be suspended. If at the time the Bank so notifies the Borrower, the Borrower has previously given the Bank a Loan Request with respect to one or more Affected Loans but such Loans have not yet gone into effect, such Loan Request shall be deemed to be void and the Borrower may borrow Loans of a non-affected type by delivering a substitute Loan Request pursuant to Section 2.2(a) hereof. Upon such date as shall be specified in such notice (Awhich shall not be earlier than the date such notice is given) imposethe Borrower shall, modify with respect to the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be paid pursuant to Section 2.12, and may borrow a Loan of another type in accordance with Section 2.1 hereof by delivering a substitute Loan Request pursuant to Section 2.2(a) hereof.
(b) In case any change in law, regulation, treaty or deem official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects the Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrower or otherwise with respect to the transactions contemplated hereby (except for taxes on the overall net income of the Bank imposed by the United States of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder Bank (other than a change such requirements as are already included in the taxation determination of the overall net income of Adjusted Eurodollar Rate), or
(iii) imposes upon the Agent or the Lenders); or (C) impose on the Agent or the Lenders Bank any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, with respect to its performance under this Agreement. and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to Bank, reduce the amount of principal or interest received income receivable by the Agent Bank or Lenders hereunderimpose any expense upon the Bank with respect to any Loans, then the Borrowers Bank shall notify the Borrower thereof. The Borrower agrees to pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce Bank the amount of such compensation increase in cost, reduction in income or additional expense as and will notwhen such cost, reduction or expense is incurred or determined, upon presentation by the Bank of a statement in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent amount and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor Bank's calculation thereof, which statement shall be conclusive deemed true and correct absent manifest error.
Appears in 1 contract
Changed Circumstances. (a) Subject to In the provisions of this Agreement, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.event that:
(bi) The Administrative Agent’s determination of on any date on which the Index LIBOR Rate as provided above shall would otherwise be conclusive. Furthermore, if set the Administrative Agent or the Lenders determines, shall have determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate LIBOR Rate, as the case may be, or
(ii) at any time the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of, or conversion of interest to be applicable to any Loan to, a LIBOR Loan has been made impracticable or unlawful by (1) the Revolving Credit Loans requested occurrence of a contingency that materially and adversely affects the London interbank market or (2) compliance by the Borrowers to be Index Loans Administrative Agent or any Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any governmental authority charged with the Revolving Credit Loans bearing interest at interpretation or administration thereof or with any request or directive of any such governmental authority (whether or not haying the rates set forth in this Agreement force of law); or
(B) the LIBOR Rate shall not no longer represent the effective pricing cost to any Bank for United States dollar deposits in the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (London interbank market; then, and in any such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate)event, the Administrative Agent shall promptly so notify the Lead Borrower thereof in writing. Until the Administrative Agent notifies the Borrower that the circumstances giving rise to such notice no longer apply, the obligation of each Bank to allow selection by the Borrower of the type of Loan affected by the contingencies described in this Section 2.10(a) (herein called “Affected Loans”) shall be suspended. If at the time the Administrative Agent so notifies the Borrower, the Borrower has previously given the Administrative Agent a Notice of Borrowing or Conversion with respect to one or more Affected Loans but such Loans have not yet gone into effect, such notification shall be deemed to be void and the Borrower may borrow Loans of a non-affected type by giving a substitute Notice of Borrowing or Conversion pursuant to Section 2.4. Upon such date as shall be specified in such notice (1which shall not be earlier than the date such notice is given) all existing Index Loans the Borrower shall, with respect to the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be paid pursuant to Section 2.15, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or Conversion pursuant to Section 2.4 hereof. The provisions of this Section 2.10(a) shall convert be applied to Base Margin Loans upon the end Borrower so as not to discriminate against the Borrower vis-à-vis other customers of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are curedBank.
(cb) If, after the date hereof, the introduction of, or In case any change in any applicable law, treatyregulation, rule, regulation treaty or guideline official directive or in the interpretation or administration application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other fiscal, monetary or other governmental authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law):
(i) shall subjects the Administrative Agent or any Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrower or otherwise with respect to the transactions contemplated hereby (Aexcept for taxes on the overall net income of the Administrative Agent or such Bank imposed by the United States of America or any political subdivision thereof), or
(ii) imposeimposes, modify modifies or deem deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine any Bank (which other than such requirements as are already included in the determination shall be conclusiveof the LIBOR Rate), or
(iii) that imposes upon the Administrative Agent or any Bank any other condition with respect to its performance under this Agreement or any other Loan Document, and the result of any of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shallsuch Bank, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted income receivable by the Administrative Agent or such Lender to reflect all additional costs incurred by Bank or impose any expense upon the Administrative Agent or such Lender in connection Bank with respect to any Loans or any payments made under or with respect to the payment by Letters of Credit, the Administrative Agent shall promptly notify the Borrower thereof. The Borrower agrees to pay to the Administrative Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing Bank the amount of any such Tax actually paid by the Borrowers. Determination increase in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by the Administrative Agent or such Lender Bank of the amount a written statement of such costs amount and setting forth in reasonable detail the Administrative Agent’s or such Bank’s calculation thereof, which statement shall be conclusive deemed true and correct absent manifest error. If after any such adjustment any part The provisions of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, this Section 2.10(b) shall reimburse the Borrowers be applied to the extent Borrower so as not to discriminate against the Borrower vis-à-vis other customers of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorapplicable Bank.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Mac-Gray Corp)
Changed Circumstances. In the event that: ---------------------
(a) Subject to on any day on which the provisions rate for a Libor Rate Loan or a Cost of this AgreementFunds Rate Loan would otherwise be set, the Borrowers Bank shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining either such rate; or
(b) at any time the rate Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the making or continuation of interest or conversion of any loan to be a Libor Rate Loan or a Cost of Funds Rate Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the applicable to the Revolving Credit Loans requested market or (B) compliance by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth Bank in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or or
(Cii) impose the indices on which the Agent or interest rates for Libor Rate Loans shall no longer represent the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or Bank for U.S. dollar deposits in the Lenders interbank market for deposits in which it regularly participates; then, and in any such event, the Bank shall forthwith so notify the Borrower thereof. Until the Bank notifies the Borrower that the circumstances giving rise to such notice no longer apply, the obligation of making or maintaining the Index Bank to make Libor Rate Loans or Cost of Funds Rate Loans of the type affected by such changed circumstances or to reduce permit the amount Borrower to select Libor Rate or Cost of principal Funds Rate Loans for any advances shall be suspended. If at the time the Bank so notifies the Borrower, the Borrower has previously given the Bank a Notice of Borrowing or a Renewal/Conversion Notice with respect to one or more Libor Rate Loans or Cost of Funds Rate Loans, but such advances have not yet gone into effect, such notification shall be deemed to be void and the Borrower may borrow under interest received by the Agent or Lenders rate options otherwise available hereunder, then by giving a substitute Notice of Borrowing or a Renewal/Conversion Notice. Upon the Borrowers shall pay to expiration of the Agent Interest Period for any Libor Rate Loan or a Cost of Funds Rate Loan which is outstanding on the Lendersdate of such notification, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion Libor Rate Loan or Cost of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation)Funds Rate Loan shall thereafter constitute a Floating Rate Loan.
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest error.
Appears in 1 contract
Samples: Commercial Promissory Note and Loan Agreement (D M Management Co)
Changed Circumstances. In the event that:
(ai) Subject to on any date on which the provisions of this Agreement, LIBOR Rate would otherwise be set the Borrowers Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, reasonably determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to LIBOR Base, or
(ii) at any time the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify have reasonably determined in good faith (which determination shall be final and conclusive) that:
(A) the Lead Borrower and making or continuation of or conversion of any Loan to a LIBOR Loan has been made impracticable or unlawful by (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and interbank market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, Agent or any change Bank in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any governmental authority request or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day directive of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders)such governmental authority, the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall law (A) imposein any such case, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lendersa "Legal Impediment"); or
(B) subject the Agent, LIBOR Rate shall no longer represent the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or any Bank for United States dollar deposits in the Lenders interbank market for deposits in which it regularly participates; or
(C) that U.S. dollar deposits in immediately available funds in an amount approximately equal to the outstanding principal balance of making the Line of Credit are not readily available to the Agent's Eurodollar Office for delivery on the first day of any Interest Period; then, and in any such event, the Agent shall forthwith so notify the Company by facsimile notice at least one day prior to (i) the date that the LIBOR Rate is to be set, (ii) the commencement date of the applicable Interest Period or maintaining (iii) the Index Loans or occurrence of the applicable event, and the Interest Rate shall become the Prime Rate and shall remain the Prime Rate until the Agent determines and so notifies the Company that the circumstances giving rise to reduce such notice no longer apply. Until the amount Agent notifies the Company that the circumstances giving rise to such notice no longer apply, the obligation of principal or interest received the Agent to allow selection by the Agent or Lenders hereunderCompany of a LIBOR Loan (during the occurrence of such circumstances, then referred to as "Affected Loans") shall be suspended. If at the Borrowers shall pay to time the Agent or so notifies the LendersCompany, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify Company has previously given the Agent a Notice of Borrowing or Lenders from such increased cost a Notice of Continuation or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest Conversion with respect to one or more Affected Loans but such borrowing or conversion has not yet gone into effect, such notification shall be deemed to be void and the Index Loans free and clear of, and without deduction for, any TaxesCompany may only borrow or convert to a Prime Rate Loan. If (A) the Agent or any Lender shall be subject to any Tax in respect as a result of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest error.Legal
Appears in 1 contract
Changed Circumstances. (a) Subject CIRCUMSTANCES AFFECTING LIBOR RATE OR LIBOR MARKET INDEX RATE AVAILABILITY. If prior to the provisions of this Agreement, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last first day of any Interest Period, to continue all or any portion of (i) the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above Agent shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, have determined in good faith (which determination shall be conclusive)conclusive and binding upon the Borrower absent manifest error) that, prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar relevant market, adequate and fair reasonable means do not exist for ascertaining the rate LIBOR Rate for such Interest Period, (ii) the Agent has received notice from the Required Lenders that the LIBOR Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders of interest making or maintaining their LIBOR Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the LIBOR Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, the Agent shall give telecopy or telephonic notice thereof to the Revolving Credit Borrower and the Lenders as soon as practicable thereafter, and will also give prompt written notice to the Borrower when such conditions no longer exist. If such notice is given (i) any LIBOR Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (ii) any Revolving Loans that were to have been converted on the first day of such Interest Period to or continued as LIBOR Loans shall be converted to or continued as Base Rate Loans and (iii) each outstanding LIBOR Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for exampleAgent, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index further LIBOR Loans shall be made until such circumstances are cured.
or continued as such, nor shall the Borrower have the right to convert Base Rate Loans to LIBOR Loans. Notwithstanding any other provision of this Agreement, if (c) If, after the date hereof, the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (Ai) the Index Loans Swingline Lender shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall reasonably determine (which determination shall be conclusiveconclusive and binding absent manifest error) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitationthat, by reason of any economiccircumstances affecting the relevant market, legalreasonable and adequate means do not exist for ascertaining the LIBOR Market Index Rate, or regulatory (ii) the Swingline Lender shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that the LIBOR Market Index Rate does not adequately and fairly reflect the cost or disadvantage that such of funding LIBOR Market Index Swingline Loans, the Swingline Lender may bear or suffer by reason shall forthwith give telephone notice of such designation)determination, confirmed in writing, to the Borrower, and thereafter the right to request LIBOR Market Index Swingline Loans shall be suspended until such time as the conditions giving rise to such notice shall no longer exist. In the event LIBOR Market Index Swingline Loans are not available on account of operation of this Section, the Swingline Lender will endeavor to provide an alternative index or reference rate which will provide a similar interest rate based on historical data.
(fb) The LAWS AFFECTING LIBOR RATE AVAILABILITY. Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other governmental authority or in the interpretation or application thereof occurring after the Closing Date shall make it unlawful for any Lender to make or maintain LIBOR Loans as contemplated by this Credit Agreement, (i) such Lender shall promptly give written notice of such circumstances to the Borrower and the Agent (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make LIBOR Loans, continue LIBOR Loans as such and Lenders convert a Base Rate Loan to LIBOR Loans shall receive payments forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain LIBOR Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a LIBOR Loan is requested and (iii) such Lender's Revolving Loans then outstanding as LIBOR Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of amounts of principal of and interest the then current Interest Periods with respect to the Index such Revolving Loans free and clear of, and without deduction for, any Taxesor within such earlier period as required by law. If (A) any such conversion of a LIBOR Loan occurs on a day which is not the Agent or any last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender shall be subject to any Tax in respect of any Index Loans or any part thereof orsuch amounts, (B) the Borrowers shall if any, as may be required pursuant to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorSection 3.5(c).
Appears in 1 contract
Samples: Syndication Amendment and Assignment (Sterile Recoveries Inc)
Changed Circumstances. (a) Subject to The Lender may advise the provisions of this Agreement, Lead Borrower that the Borrowers shall have Lender has made the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, in good faith determination (which determination shall be final and conclusive), prior to the commencement ) of any Interest Period that of the following:
(Ai) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate Adequate and fair means do not exist for ascertaining the rate for LIBOR Loans.
(ii) The continuation of or conversion of any Revolving Credit Loan to a LIBOR Loan has been made impracticable or unlawful by the occurrence of a contingency that materially and adversely affects the applicable market or the compliance by the Lender in good faith with any Applicable Law.
(iii) The indices on which the interest rates for LIBOR Loans are based shall no longer represent the effective cost to be the Lender for U.S. dollar deposits in the London interbank market for deposits in which it regularly participates.
(b) In the event that the Lender advises the Lead Borrower of an occurrence described in Section (a), then, until the Lender notifies the Lead Borrower that the circumstances giving rise to such notice no longer apply (which notice the Lender shall give promptly after it has knowledge thereof):
(i) The obligation of the Lender to make loans of the type affected by such changed circumstances or to permit the Lead Borrower to select the affected interest rate as otherwise applicable to the any Revolving Credit Loans requested by the Borrowers to shall be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period suspended.
(such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify ii) Any notice which the Lead Borrower and (1) all existing Index Loans shall convert had given the Lender with respect to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereofany LIBOR Loan, the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel time for action with respect to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid which has not occurred prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request Lender's having given notice pursuant to Section (other than as a result of a default by the Agent or the Lendersa), shall be deemed at the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment option of the deposits or other funds acquired by the Agent or the Lenders Lender to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation)been given.
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest error.
Appears in 1 contract
Changed Circumstances. (a) Subject to In the provisions of this Agreement, event that:
(i) on any date on which the Borrowers Adjusted Eurocurrency Rate would otherwise be set the Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate Interbank Offered Rate, or
(ii) at any time the Agent or any Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of interest or conversion of any Loan to be applicable to the Revolving Credit Loans requested a Eurocurrency Loan has been made impracticable or unlawful by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and interbank Eurocurrency market for Dollar or Alternative Currency deposits or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or compliance by any change Bank in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(B) the Adjusted Eurocurrency Rate shall no longer represent the effective cost to any Bank for U.S. dollar deposits in the interbank market for Dollar or Alternative Currency deposits in which it regularly participates; or
(AC) imposein the case of Eurocurrency Loans denominated in an Alternative Currency, modify the relevant Alternative Currency is not available in the relevant amounts or deem for the relevant periods, or that due to national or international financial, political or economic conditions or exchange controls any Bank is no longer willing to make, fund or maintain its Eurocurrency Loans to be made in such Alternative Currency; then, and in any such event, any affected Bank shall endeavor to designate a different Lending Office for the type of Loan affected by the circumstances described in this Section 2.9(a) (herein called "AFFECTED LOANS") if such designation will avoid the contingencies described in this Section 2.9(a) and will not, in the sole opinion of the affected Bank, be disadvantageous to the affected Bank. If the affected Bank is not able to so designate an alternative Lending Office, the Agent shall forthwith so notify the Company and each Borrowing Subsidiary thereof. Until the Agent notifies the Company and each Borrowing Subsidiary that the circumstances giving rise to such notice no longer apply, the obligation of the Banks to allow selection by the Company or any Borrowing Subsidiary of Affected Loans shall be suspended. If at the time the Agent so notifies the Company and each Borrowing Subsidiary, the Company or a Borrowing Subsidiary has previously given the Agent a Notice of Borrowing or Conversion with respect to one or more Affected Loans but such Loans have not yet gone into effect, such notification shall be deemed to be void and the Company or such Borrowing Subsidiary may borrow Loans of a non-affected type by giving a substitute Notice of Borrowing or Conversion pursuant to Section 2.3 hereof. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given) the Company or applicable Borrowing Subsidiary shall, with respect to the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be paid pursuant to Section 2.14, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or Conversion pursuant to Section 2.3 hereof.
(b) In case any law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects any Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Company or otherwise with respect to the transactions contemplated hereby (except for taxes on the overall net income of a Bank imposed by the United States of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder Bank (other than a change such requirements as are already included in the taxation determination of the overall net income of the Agent or the LendersAdjusted Eurocurrency Rate); or , or
(Ciii) impose on the Agent or the Lenders imposes upon any Bank any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereofwith respect to its performance under this Agreement, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to such Bank, reduce the amount of principal income receivable by such Bank or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay impose any expense upon such Bank with respect to the Agent or the Lenders, on demandany Loans, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts Bank shall endeavor to designate a different lending office Lending Office for the Liabilities such Loans if such designation will avoid the need for, or reduce the amount of of, such compensation cost or reduction and will not, in the reasonable sole opinion of such Lender (includingBank, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that be disadvantageous to such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any TaxesBank. If (A) such Bank is not able to so designate an alternative Lending Office, such Bank shall forthwith notify the Agent or any Lender shall be subject Company thereof. The Company agrees to pay to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of Bank the amount of such costs increase in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by such Bank of a statement in the amount and setting forth such Bank's calculation thereof, which statement shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery deemed true and the basis therefor shall be conclusive correct absent manifest error.
Appears in 1 contract
Samples: Secured Revolving Credit Agreement (Picturetel Corp)
Changed Circumstances. In the event that:
(ai) Subject to on any date on which the provisions of this Agreement, LIBOR Rate would otherwise be set the Borrowers Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, reasonably determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to LIBOR Base, or
(ii) at any time the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify have reasonably determined in good faith (which determination shall be final and conclusive) that:
(A) the Lead Borrower and making or continuation of or conversion of any Loan to a LIBOR Loan has been made impracticable or unlawful by (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and interbank market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, Agent or any change Bank in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any governmental authority request or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day directive of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders)such governmental authority, the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall law (A) imposein any such case, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lendersa "Legal Impediment"); or
(B) subject the Agent, LIBOR Rate shall no longer represent the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or any Bank for United States dollar deposits in the Lenders interbank market for deposits in which it regularly participates; or
(C) that U.S. dollar deposits in immediately available funds in an amount approximately equal to the outstanding principal balance of making the Line of Credit are not readily available to the Agent's Eurodollar Office for delivery on the first day of any Interest Period; then, and in any such event, the Agent shall forthwith so notify the Company by facsimile notice at least one day prior to (i) the date that the LIBOR Rate is to be set, (ii) the commencement date of the applicable Interest Period or maintaining (iii) the Index Loans or occurrence of the applicable event, and the Interest Rate shall become the Prime Rate and shall remain the Prime Rate until the Agent determines and so notifies the Company that the circumstances giving rise to reduce such notice no longer apply. Until the amount Agent notifies the Company that the circumstances giving rise to such notice no longer apply, the obligation of principal or interest received the Agent to allow selection by the Company of a LIBOR Loan (during the occurrence of such circumstances, referred to as "Affected Loans") shall be suspended. If at the time the Agent so notifies the Company, the Company has previously given the Agent a Notice of Borrowing or Lenders hereundera Notice of Continuation or Conversion with respect to one or more Affected Loans but such borrowing or conversion has not yet gone into effect, such notification shall be deemed to be void and the Company may only borrow or convert to a Prime Rate Loan. If as a result of a Legal Impediment, the Agent and/or any Bank shall incur Breakage Costs in converting from a LIBOR Loan, then the Borrowers Company shall pay all such Breakage Costs to the Agent or promptly upon its demand therefor for its account and/or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount account of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorBank.
Appears in 1 contract
Changed Circumstances. (a) Subject If in connection with any request for a Monthly SOFR Rate Loan or a conversion of Base Rate Loans to Monthly SOFR Rate Loans or the provisions of this Agreement, the Borrowers shall have the option (A) as continuation of any dateof such Loans, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periodsas applicable, (Bi) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, in good faith determines (which determination shall be conclusive), prior to the commencement of any Interest Period conclusive absent manifest error) that (A) U.S. Dollar deposits no Successor Rate has been determined in accordance with Section 3.3(b), and the circumstances under clause (i) of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent Section 3.3(b) or the Lenders in the London Interbank Eurodollar market in the ordinary course of businessScheduled Unavailability Date has occurred, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair reasonable means do not otherwise exist for ascertaining the rate of interest determining Monthly SOFR with respect to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans a proposed Monthly SOFR Loan or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all connection with an existing Index Loans shall convert to or proposed Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction ofRate Loan, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the ii) Administrative Agent or the LendersRequired Lenders determine that for any CREDIT AGREEMENT – Page 46 0000-0000-0000.5 reason that Monthly SOFR with respect to a proposed Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, make it unlawful for Administrative Agent will promptly so notify Borrower and each Lender, Thereafter, (x) the Agent or obligation of the Lenders to make or maintain Index Monthly SOFR Rate Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index or to convert Base Rate Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans Monthly SOFR Rate Loans, shall be made until such circumstance is cured.
suspended (d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate affected Monthly SOFR Rate Loans), and (y) in the event of an officer a determination described in the preceding sentence with respect to the SOFR component of the Base Rate, the utilization of the SOFR component in determining the Base Rate shall be suspended, in each case until Administrative Agent (or, in the case of a determination by the Required Xxxxxxx described in clause (ii) of this Section 3.3(a), until Administrative Agent upon instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (i) Borrower may revoke any pending request for a Borrowing of, or conversion to, Monthly SOFR Rate Loans (to the extent of the affected Monthly SOFR Rate Loans) or, failing that, will be deemed to have converted such Lender setting forth request into a request for a Borrowing of Base Rate Loans in the amount of such recovery specified therein and the basis therefor (ii) any outstanding Monthly SOFR Rate Loans shall be conclusive absent manifest error.deemed to have been converted to Base Rate Loans immediately at the end of the month
Appears in 1 contract
Changed Circumstances. (a) Subject to the provisions of this Agreement, the Borrowers Borrower shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index LIBOR Loans of various Interest Periods, ; (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index LIBOR Loans as Index LIBOR Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index LIBOR Loans to Base Margin Rate Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Rate Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index LIBOR Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuingoccurred.
(b) The Administrative Agent’s determination of the Index LIBOR Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, in good faith (which determination shall be conclusive), prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar LIBOR market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar LIBOR market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers Borrower to be Index LIBOR Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate)) or (C) the LIBOR Rate determined or to be determined for any Interest Period will not adequately and fairly reflect the cost to the Lenders of making or maintaining LIBOR Loans during such Interest Period, the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index LIBOR Loans shall convert to Base Margin Rate Loans upon the end of the applicable Interest Period, and (2) no additional Index LIBOR Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index LIBOR Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index LIBOR Loans shall immediately convert to Base Margin Rate Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index LIBOR Loans shall be made until such circumstance is cured.
(d) IfThe Borrower shall reimburse each Lender on demand for any loss incurred or to be incurred by it in the reemployment of the funds released (i) resulting from any prepayment (for any reason whatsoever, including, without limitation, conversion to Base Margin Loans or acceleration by virtue of, and after, the occurrence and continuance of an Event of Default) of any LIBOR Loan required or permitted under this Agreement, if such LIBOR Loan is prepaid other than on the last day of the Interest Period for such LIBOR Loan or (ii) in the event that after the Borrower delivers a notice of borrowing under Section 2.5(b)(ii) in respect of LIBOR Loans, such LIBOR Loans are not made on the first day of the Interest Period specified in such notice of borrowing for any reason other than a breach by such Lender of its obligations hereunder. Such loss shall be the amount as reasonably determined by such Lender as the excess, if any, of (A) the amount of interest which would have accrued to such Lender on the amount so paid or not borrowed at a rate of interest equal to the LIBOR Rate (including the LIBOR Margin) for such Loan, for any reason, an Index Loan is paid prior the period from the date of such payment or failure to borrow to the last Business Day day (x) in the case of any a payment or refinancing with Base Margin Loans other than on the last day of the Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders)for such LIBOR Loan, the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits then current Interest Period for such LIBOR Loan, or other funds acquired by (y) in the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result case of such prepayment or failure to occurborrow, of the Interest Period for such Loan which would have commenced on the date of such failure to borrow, over (B) the amount of interest which would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the London interbank market (collectively, “Breakage Costs”). Any Lender demanding reimbursement for such loss shall deliver to the Borrower from time to time one or more certificates setting forth the amount of such loss as determined by such Lender and setting forth in reasonable detail the manner in which such amount was determined.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index LIBOR Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers Borrower to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index LIBOR Loans or the Agent’s or Lenders’ any Lender’s funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index LIBOR Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers Borrower shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive All payments of amounts of principal of and interest with respect to the Index Loans made by Borrower hereunder or under any other Loan Document will be made without setoff, counterclaim, or other defense. In addition, all such payments will be made free and clear of, and without deduction or withholding for, any present or future Taxes, and in the event any deduction or withholding of Taxes is required, Borrower shall comply with the next sentence of this Section 2.20(f). If any Taxes are so levied or imposed, Borrower agrees to pay the full amount of such Taxes and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement or any other Loan Document, including any amount paid pursuant to this Section 2.20(f) after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such other Loan Document. Borrower will furnish to Agent as promptly as possible after the date the payment of any Tax is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Borrower. The Borrower agrees to pay any present or future stamp, value added or documentary taxes or any other excise or property taxes, charges, or similar levies that arise from any payment made hereunder or under any other Loan Document or from the execution, delivery, performance, recordation, or filing of, or otherwise with respect to this Agreement or any other Loan Document.
(Ag) If the Agent or any a Lender shall be subject to any Tax determines, in respect its sole discretion, that it has received a refund of any Index Loans Taxes with respect to which the Borrower has paid additional amounts pursuant to Section 2.21(f), so long as no Event of Default has occurred and is continuing, it shall pay over such refund to the Borrower (but only to the extent of payments made, or any part thereof oradditional amounts paid, (Bby the Borrower under Section 2.20(f) the Borrowers shall be required with respect to withhold or deduct any Tax from any such amount, the Index Rate applicable Taxes giving rise to such Index Loans shall be adjusted by a refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant governmental authority with respect to reflect all additional costs incurred such a refund); provided, that, the Borrower, upon the request of the Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges, imposed by the relevant governmental authority) to the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by event the Agent or such Lender is subsequently recovered by required to repay such refund to such governmental authority. Notwithstanding anything in this Agreement to the contrary, this Section 2.20 shall not be construed to require the Agent or such Lender, the Agent any Lender to make available its tax returns (or such Lender, as applicable, shall reimburse the Borrowers any other information which it deems confidential) to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent Borrower or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorany other Person.
Appears in 1 contract
Changed Circumstances. (a) Subject to In the provisions of this Agreement, event that:
(i) on any date on which the Borrowers Adjusted Eurodollar Rate would otherwise be set the Bank shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate London Interbank Offered Rate, or (ii) at any time the Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of interest or conversion of any Loan to be applicable to the Revolving Credit Loans requested a Eurodollar Loan has been made impracticable or unlawful by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and London interbank Eurodollar market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, or any change Bank in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(B) the Adjusted Eurodollar Rate shall no longer represent the effective cost to the Bank for U.S. dollar deposits in the London interbank market; then, and in any such event, the Bank shall forthwith so notify each Borrower thereof. Until the Bank notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Bank to allow selection by the Borrowers of Eurodollar Loans shall be suspended. If at the time the Bank so notifies each Borrower, a Borrower has previously given the Bank a Loan Request with respect to one or more Eurodollar Loans but such Loans have not yet gone into effect, such Loan Request shall be deemed to be void and, if the Bank in its discretion continues to be willing to lend to such Borrower, such Borrower may borrow Loans of a non-affected type by delivering a substitute Loan Request pursuant to Section 2.2(a) hereof.
(Ab) imposeIn case any change in law, modify regulation, treaty or deem official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects the Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by any Borrower or otherwise with respect to the transactions contemplated hereby (except for taxes on the overall net income of the Bank imposed by the United States of America or any political subdivision thereof), or (ii) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder Bank (other than a change such requirements as are already included in the taxation determination of the overall net income of the Agent or the LendersAdjusted Eurodollar Rate); , or (Ciii) impose on imposes upon the Agent or the Lenders Bank any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereofwith respect to its performance under this Agreement, -13- and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to Bank, reduce the amount of principal or interest received income receivable by the Agent Bank or Lenders hereunderimpose any expense upon the Bank with respect to any Loans, then the Borrowers Bank shall notify each Borrower thereof. The applicable Borrower(s) agree(s) to pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce Bank the amount of such compensation increase in cost, reduction in income or additional expense attributable to such Loan or Loans as and will notwhen such cost, reduction or expense is incurred or determined, upon presentation by the Bank of a statement in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent amount and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor Bank's calculation thereof, which statement shall be conclusive deemed true and correct absent manifest error.
Appears in 1 contract
Samples: Credit Agreement (Gt Global Floating Rate Fund Inc)
Changed Circumstances. (a) Subject Notwithstanding anything to the provisions of this Agreementcontrary contained herein, if (i) any change in any law or interpretation thereof by any Governmental Authority makes it unlawful for a Lender to make or maintain a Eurodollar Rate Loan or a Base Rate Loan as to which the Borrowers shall have interest rate is determined by reference to the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest PeriodsLIBOR Rate, (Bii) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Required Lenders determines, determine in good faith (which determination shall be conclusive), prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lendersabsent manifest error, make be final and conclusive and binding upon all parties hereto) that it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than has become impracticable as a result of a default by circumstance that adversely affects the Agent London interbank market or the Lenders)position of such Lender in such market to make or maintain a Eurodollar Rate Loan or (iii) the Required Lenders determine that the Adjusted Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan (or, the Borrowers agree LIBOR Rate, in the case of a proposed Base Rate Loan as to indemnify which the interest rate is determined by reference to the LIBOR Rate) does not adequately and fairly reflect the cost to such Lenders of funding such Term Loan, then, in each case, such Lender or Lenders shall give notice thereof to the Administrative Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall Borrower and may (A) imposedeclare that Eurodollar Rate Loans or Base Rate Loans as to which the interest rate is determined by reference to the LIBOR Rate will not thereafter be made by such Lender, modify such that any request for Eurodollar Rate Loans or deem applicable any assessmentBase Rate Loans as to which the interest rate is determined by reference to the LIBOR Rate from such Lender shall be deemed to be a request for a Base Rate Loan, reserve, special deposit unless such Lender’s declaration has been withdrawn (and it shall be withdrawn promptly upon the cessation of the circumstances described in clause (i) or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (ii) above) and (B) subject require that all outstanding Eurodollar Rate Loans or Base Rate Loans as to which the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments interest rate is determined by reference to the Agent or LIBOR Rate made by such Lender be converted to Base Rate Loans (as to which the Lenders of principal or interest due from the Borrowers rate is not determined by reference to the Agent or LIBOR Rate) immediately, in which event all outstanding Eurodollar Rate Loans and Base Rate Loan as to which the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing interest rate is to increase the cost determined by reference to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion LIBOR Rate of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorconverted.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) Subject to on any date on which the provisions of this AgreementApplicable Eurodollar Rate would otherwise be set, the Borrowers Agent or any Lender shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate Eurodollar Rate, as applicable; or
(b) at any time the Agent or any Lender shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of interest to be applicable to the Revolving Credit Loans requested Eurodollar Pricing Option has been made impracticable or unlawful by (A) the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits occurrence of a comparable amount for contingency that materially and adversely affects the relevant period London interbank market or (such as for example, but not limited to, official reserve requirements required B) compliance by Regulation D to the extent not given effect any Lender in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(ii) the Eurodollar Rate shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or no longer represent the effective cost to the Lenders for U.S. dollar deposits in or the London interbank market, as applicable for the account of or loans bydeposits in which they regularly participate; then, or any other acquisition of funds or disbursements byand in such event, the Agent or shall forthwith so notify the Lenders; (B) subject Borrowers thereof. Until the AgentAgent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to and the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding allow election by the Borrowers of a Eurodollar Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, New England Audio has previously given the Agent a Eurodollar Pricing Notice with respect to a Eurodollar Pricing Option, but the Eurodollar Pricing Option requested therein has not yet gone into effect, such Tax Eurodollar Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the Eurodollar Pricing Option with respect to all Eurodollar Rate Loans shall be terminated and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicablejointly and severally, shall reimburse the Borrowers pay all interest due on such Eurodollar Rate Loans and any amounts required to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorpaid pursuant to Section 4.3.
Appears in 1 contract
Samples: Credit Agreement (Tweeter Home Entertainment Group Inc)
Changed Circumstances. In the event that: ---------------------
(a) Subject to on any date on which the provisions of this Agreement, Applicable LIBOR Rate would otherwise be set the Borrowers Bank shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate LIBOR Rate; or
(b) at any time the Bank shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of interest to be applicable to a LIBOR Pricing Option has been made impracticable or unlawful by (A) the Revolving Credit Loans requested occurrence of a contingency that materially and adversely affects the London interbank market, or (B) compliance by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth Bank in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or or
(Cii) impose on the Agent or LIBOR Rate shall no longer represent the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office Bank for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, U.S. dollar deposits in the reasonable opinion of such Lender (includingLondon interbank market, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear ofas applicable for deposits in which it regularly participates; then, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amountevent, the Index Rate applicable Bank shall forthwith so notify the Company thereof. Until the Bank notifies the Company that the circumstances giving rise to such Index Loans shall be adjusted by notice no longer apply, the Administrative Agent or such Lender obligation of the Bank to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Bank so notifies the Company, the Company has previously given the Bank a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Tax Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. If circumstances described in clause (b)(i)(B) arise, then upon such date as shall be specified in such notice (which shall not be earlier than the Borrowers date such notice is given), the LIBOR Pricing Option with respect to any new requests for LIBOR Rate Loans shall provide be terminated, but any existing LIBOR Rate Loans may continue to be maintained through the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender end of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorapplicable Interest Period.
Appears in 1 contract
Changed Circumstances. (a) Subject to The Agent may give the provisions Borrower notice of this Agreement, the Borrowers occurrence of the following:
(i) The Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive)) on any day on which the rate for a Eurodollar Loan would otherwise be set, prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(cii) If, after The Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(A) The continuation of any Revolving Credit Loan to a Eurodollar Loan has been made impracticable or unlawful by the date hereof, occurrence of a contingency that materially and adversely affects the introduction of, applicable market or any change compliance by the Agent in good faith with any applicable law, treaty, rule, regulation Requirements of Law or guideline interpretation or in change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; ).
(B) subject The indices on which the Agent, interest rates for Eurodollar Loans are based shall no longer represent the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or any Lender for U.S. dollar deposits in the Lenders interbank market for deposits in which it regularly participates.
(b) In the event that the Agent gives the Borrower notice of making or maintaining an occurrence described in Section 2-21(a), then, until the Index Agent notifies the Borrower that the circumstances giving rise to such notice no longer apply:
(i) The obligation of the Agent and each Lender to make Eurodollar Loans of the type affected by such changed circumstances or to reduce permit the amount of principal or Borrower to select the affected interest received by rate as otherwise applicable to any Revolving Credit Loans shall be suspended.
(c) Notwithstanding the Agent or Lenders hereunderforegoing, then the Borrowers shall pay each Lender agrees to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and so long as such efforts would not be disadvantageous to it, in its reasonable discretion, in any legal, economic or regulatory manner) to designate a different lending office for if the Liabilities if making of such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or would allow such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers its lending office to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorcontinue to make Eurodollar Loans.
Appears in 1 contract
Samples: Secured Superpriority Debtor in Possession Loan, Security and Guaranty Agreement (Aeropostale Inc)
Changed Circumstances. (a) Subject If prior to the provisions of this Agreement, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last first day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.:
(bi) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, in good faith shall have determined (which determination shall be conclusive)conclusive and binding upon the Borrower) that, prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar relevant market, adequate and fair reasonable means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans Adjusted Term SOFR or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to Eurocurrency Rate for any applicable Currency for such Interest Period, or
(ii) the Administrative Agent shall have received notice from the Majority Lenders or the Majority Multicurrency Lenders, as the case may be, that Adjusted Term SOFR or the Eurocurrency Rate for U.S. Dollar deposits any applicable Currency determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of a comparable amount for the relevant period (making or maintaining their affected Loans during such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate)Interest Period, the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the Lenders as soon as practicable thereafter. If such notice is given (w) any EurodollarSOFR Loans or Multicurrency Loans, as the case may be, in the affected Currency requested to be made on the first day of such Interest Period shall be made as ABR Loans (in the case of Multicurrency Loans, in an amount equal to the Dollar Equivalent of such requested Multicurrency Loans), provided, that, notwithstanding the provisions of subsection 2.2 or 2.14, the Borrower may cancel the request for such EurodollarSOFR Loan or Multicurrency Loan, as the case may be, by written notice to the Administrative Agent one Business Day prior to the first day of such Interest Period and the Borrower shall not be subject to any liability pursuant to subsection 3.11 with respect to such cancelled request, (x) if the affected Currency is Dollars, any Loans that were to have been converted on the first day of such Interest Period to EurodollarSOFR Loans shall be continued as ABR Loans, (y) if the affected Currency is Dollars, any outstanding EurodollarSOFR Loans shall be converted, on the first day of such Interest Period, to ABR Loans and (z) any Multicurrency Loans in the affected Currency to which such Interest Period relates shall be repaid on the first day of such Interest Period. Until such notice has been withdrawn by the Administrative Agent, no further EurodollarSOFR Loans or Multicurrency Loans in the applicable affected Currency shall be made or continued as such, nor (if the affected Currency is Dollars) shall the Borrower have the right to convert ABR Loans to EurodollarSOFR Loans.
(i) Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election with respect to any applicable then-current Benchmark, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace such Benchmark with one or more Benchmark Replacements (it being understood that all amounts denominated in a given currency for which a Benchmark is being replaced shall be subject to the same Benchmark Replacement). Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Majority Lenders. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Majority Lenders have delivered to the Administrative Agent written notice that such Majority Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 3.6(b)(i) will occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right (in consultation with the Borrower) to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party heretoto this Agreement or any other Loan Document.
(iii) The Administrative Agent will promptly notify the Lead Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement and (iv) the commencement or conclusion of any Benchmark Unavailability Period. The Administrative Agent will promptly notify the Borrower of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 3.6(b)(iv). Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 3.6(b), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from - 47 - any other party heretoto this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 3.6(b).
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (A) if any then-current Benchmark is a term rate (including the Term SOFR Reference Rate, EURIBOR, BBSY or CDOR) and either (1) all existing Index Loans shall convert any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to Base Margin Loans upon time as selected by the end of the applicable Interest Period, and Administrative Agent in its reasonable discretion or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful regulatory supervisor for the Agent administrator of such Benchmarx xxx xxxvided a public statement or the Lenders to make publication of information announcing that any tenor for such Benchmark is not or maintain Index Loanswill not be representative, then the Administrative Agent shall promptly notify may modify the Lead Borrower and definition of “Interest Period” (Aor any similar or analogous definition) the Index Loans shall immediately convert for any Benchmark settings at or after such time to Base Margin Loans on the last Business Day of the then existing Interest Period remove such unavailable or on such earlier date as required by law non-representative tenor and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior if a tenor that was removed pursuant to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall clause (A) impose, modify above either (1) is subsequently displayed on a screen or deem applicable any assessment, reserve, special deposit information service for a Benchmark (including a Benchmark Replacement) or similar requirement against assets held by(2) is not, or deposits in is no longer, subject to an announcement that it is not or will not be representative for the account of or loans bya Benchmark (including a Benchmark Replacement), or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and then the Administrative Agent may modify the definition of “Interest Period” (or Lenders shall determine (which determination shall be conclusiveany similar or analogous definition) that the result of the foregoing is to increase the cost to the Agent for all Benchmark settings at or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, after such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from reinstate such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest error.previously removed tenor
Appears in 1 contract
Changed Circumstances. (a) Subject to In the provisions of this Agreementevent that:
(i) on any date on which the Adjusted LIBOR Rate would otherwise be set, the Borrowers Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to Adjusted LIBOR Rate, or
(ii) at any time the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify have determined in good faith (which determination shall be final and conclusive) that:
(A) the Lead Borrower and making or continuation of or conversion of any Loan to a LIBOR Loan has been made impracticable or unlawful by (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and Interbank LIBOR market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or compliance by any change Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(B) the Adjusted LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the LIBOR market for deposits in which it regularly participates;
(a) (herein called "Affected Loans") shall be suspended. If at the time the Agent so notifies the Company, the Company has previously given the Agent a Notice of Borrowing or Conversion with respect to one or more Affected Loans but such Loans have not yet gone into effect, such notification shall be deemed to be void and the Borrowers may borrow Loans of a non-affected type by giving a substitute Notice of Borrowing or Conversion Pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice from the Agent (Awhich shall not be earlier than the date such notice is given) imposethe Company shall, modify with respect to the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be paid pursuant to Section 2.13, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or deem Conversion pursuant to Section 2.2 hereof.
(b) In case any law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects any Lender to any tax not in effect on the date hereof with respect to payments of principal or interest or any other amounts payable hereunder by the Company or otherwise with respect to the transactions contemplated hereby (except for taxes on the overall net income of such Lender imposed by the United States of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder Lender (other than a change such requirements as are already included in the taxation determination of the overall net income of the Agent or the LendersAdjusted LIBOR Rate); or , or
(Ciii) impose on the Agent or the Lenders imposes upon any Lender any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereofwith respect to its performance under this Agreement, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to such Lender, reduce the amount of principal income receivable by such Lender or interest received by impose any expense upon such Lender with respect to any outstanding LIBOR Loans, such Lender shall notify the Agent or Lenders hereunderCompany thereof. The Borrowers, then the Borrowers shall jointly and severally, agree to pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation increase in cost, reduction in income or additional expense as and will notwhen such cost, in the reasonable opinion of such Lender (includingreduction or expense is incurred or determined, without limitation, upon presentation by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of a statement in the amount of and setting forth such costs Lender's calculation thereof, which statement shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery deemed true and the basis therefor shall be conclusive correct absent manifest error.
Appears in 1 contract
Samples: Credit Agreement (Brookstone Inc)
Changed Circumstances. In the event that:
(a) Subject to On any day on which the provisions of this Agreementrate for a LIBOR Loan would otherwise be set, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, shall have determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining either such rate; or
(b) At any time that the rate Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the continuation of interest to be applicable to the or conversion of any Revolving Credit Loan or any portion of the Term Loan to a LIBOR Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the applicable market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof or with any request or directive of any such governmental authority having the force of law; or
(ii) the indices on which the interest rates for LIBOR Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not no longer represent the effective pricing cost to the Administrative Agent Lenders for U.S. Dollar dollar deposits of a comparable amount in the interbank market for the relevant period (deposits in which they regularly participate; then, and in any such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate)event, the Administrative Agent shall promptly forthwith so notify the Lead Borrower and (1) all existing Index Loans shall convert thereof. Until the Administrative Agent notifies the Lead Borrower that the circumstances giving rise to Base Margin Loans upon the end of the applicable Interest Period, and (2) such notice no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereoflonger apply, the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion obligation of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make LIBOR Loans of the type affected by such changed circumstances or maintain Index Loans, then to permit the Lead Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans or any portion of the Term Loan shall be suspended. If at the time the Administrative Agent shall promptly notify so notifies the Lead Borrower, the Lead Borrower has previously given the Administrative Agent a Renewal/Conversion Notice with respect to one or more LIBOR Loans, but such LIBOR Loans have not yet gone into effect, such notification shall be deemed to be void and (A) the Index Loans shall immediately convert to Lead Borrower may only borrow Base Margin Loans and shall furnish a substitute Renewal/Conversion Notice. Upon the expiration of the Interest Period for any LIBOR Loan which is outstanding on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) imposenotification, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation)LIBOR Loan shall thereafter constitute a Base Margin Loan.
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest error.
Appears in 1 contract
Changed Circumstances. (a) Subject Circumstances Affecting LIBOR Rate Availability and Alternative Currency Availability. Unless and until a Replacement Rate is implemented in accordance with clause (c) below, in connection with any request for a LIBOR Rate Loan or a conversion to the provisions of this Agreementor continuation thereof or otherwise in connection with any request for a LIBOR Rate Loan, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new an Alternative Currency Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, Loan or a conversion to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loanscontinuation thereof, if the continuation or conversion thereof would violate the provisions of Sections 2.21(bfor any reason (i) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, in good faith shall reasonably determine (which determination shall be conclusive)conclusive and binding absent manifest error) that deposits are not being offered to banks in the applicable interbank market (including, prior to without limitation, the commencement of any London interbank Eurodollar market) for the applicable amount and Interest Period that of such Loan, (Aii) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or shall reasonably determine (Bwhich determination shall be conclusive and binding absent manifest error) by reason of circumstances affecting the London Interbank Eurodollar market, that reasonable and adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount LIBOR Rate for the relevant period Interest Period with respect to a proposed LIBOR Rate Loan, (such as for exampleiii) a fundamental change has occurred in the foreign exchange or interbank markets with respect to any Alternative Currency (including, but not limited towithout limitation, official reserve requirements required by Regulation D to the extent not given effect changes in determining the ratenational or international financial, political or economic conditions or currency exchange rates or exchange controls), the Administrative Agent shall promptly notify the Lead Borrower and (1iv) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful has become otherwise materially impractical for the Agent or the Lenders to make any Alternative Currency Revolving Credit Loans or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (Av) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Required Lenders shall determine (which determination shall be conclusiveconclusive and binding absent manifest error) that the result of the foregoing is to increase LIBOR Rate does not adequately and fairly reflect the cost to the Agent or the such Lenders of making or maintaining the Index such Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunderduring such Interest Period, then the Borrowers Administrative Agent shall pay promptly give notice thereof to the Agent or the LendersBorrower. Thereafter, on demand, such additional amounts as until the Administrative Agent or notifies the Borrower that such circumstances no longer exist, the obligation of the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index make LIBOR Rate Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender right of the amount of such costs shall be conclusive absent manifest error. If after Borrower to convert any such adjustment Loan to or continue any part of any Tax paid by the Agent Loan as a LIBOR Rate Loan or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lenderan Alternative Currency Revolving Credit Loan, as applicable, shall reimburse be suspended, and:
(A) in the Borrowers case of LIBOR Rate Loans denominated in Dollars, the Borrower shall either (1) repay in full (or cause to be repaid in full) the extent then outstanding principal amount of each such LIBOR Rate Loan, together with accrued interest thereon (subject to Section 4.1(d)), on the last day of the then current Interest Period applicable to such LIBOR Rate Loan or (2) convert the then outstanding principal amount so recovered. A certificate of an officer each such LIBOR Rate Loan to a Base Rate Loan as of the Administrative Agent last day of such Interest Period; and
(B) in the case of LIBOR Rate Loans denominated in an Alternative Currency, the Borrower shall either (1) repay in full (or such Lender setting forth cause to be repaid in full) the then outstanding principal amount of each such recovery and LIBOR Rate Loan, together with accrued interest thereon (subject to Section 4.1(d)), on the basis therefor shall be conclusive absent manifest errorlast day of the then current Interest Period applicable to such LIBOR Rate Loan or (2) convert the then outstanding principal amount of each such LIBOR Rate Loan to a Base Rate Loan denominated in Dollars as of the last day of such Interest Period.
Appears in 1 contract
Samples: Credit Agreement (Owens Corning)
Changed Circumstances. (a) Subject to In the provisions of this Agreementevent that:
(i) on any date on which the Adjusted LIBOR Rate would otherwise be set, the Borrowers Agent or any Bank shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate London Interbank Offered Rate, or
(ii) at any time Agent or any Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of interest or conversion of any Loan to be applicable to the Revolving Credit Loans requested a LIBOR Loan has been made impracticable or unlawful by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and London interbank eurodollar market or the market for certificates of deposit maintained by dealers in San Francisco of recognized standing or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction of, or compliance by any change Bank in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders); or
(B) subject the Agent, Adjusted LIBOR Rate shall no longer represent the Lenders or the Index Loans effective cost to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change Bank for U.S. dollar deposits in the taxation interbank market for deposits in which it regularly participates;
(a) (herein called "Affected Loans") shall be suspended. If at the time Agent so notifies Borrower, Borrower has previously given Agent a Notice of the overall net income Borrowing or Conversion with respect to one or more Affected Loans but such Loans have not yet gone into effect, such notification shall be deemed to be void and Borrower may borrow Loans of the Agent a non-affected type by giving a substitute Notice of Borrowing or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders Conversion pursuant to Section 2.2 hereof. Upon such date as shall determine be specified in such notice (which determination shall not be conclusiveearlier than the date such notice is given) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders Borrower shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free outstanding Affected Loans, prepay the same, together with interest thereon and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be amounts required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest error.pursuant to
Appears in 1 contract
Changed Circumstances. (a) Subject to In the provisions of this Agreement, the Borrowers shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.event that:
(b) The Administrative Agent’s determination of a On any day on which the Index Rate as provided above shall rate for a LIBOR Loan would otherwise be conclusive. Furthermoreset, if the Administrative Agent or the Lenders determines, shall have determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining either such rate; or
(b At any time the rate Administrative Agent shall have determined in good faith (which determination shall be final and conclu- sive) that:
(i the continuation of interest to be applicable to the or conversion of any Revolving Credit Loans requested Loan to a LIBOR Loan has been made impracticable or unlawful by (A) the Borrowers to be Index Loans occurrence of a contingency that materially and adversely affects the applicable market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any governmental authority charged with the Revolving Credit Loans bearing interpretation or admin- istration thereof or with any request or directive of any such governmental authority having the force of law; or
(ii the indices on which the interest at the rates set forth in this Agreement for LIBOR Loan shall not no longer represent the effective pricing cost to the Administrative Agent Lenders for U.S. Dollar dollar deposits of a comparable amount in the interbank market for the relevant period (deposits in which they regularly participate; then, and in any such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate)event, the Administrative Agent shall promptly forthwith so notify the Lead Borrower and (1) all existing Index Loans shall convert thereof. Until the Administrative Agent notifies the Lead Borrower that the circumstances giving rise to Base Margin Loans upon the end of the applicable Interest Period, and (2) such notice no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereoflonger apply, the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion obligation of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make LIBOR Loans of the type affected by such changed circumstances or maintain Index Loans, then to permit the Lead Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended. If at the time the Administrative Agent shall promptly notify so notifies the Lead Borrower, the Lead Borrower has previously given the Administrative Agent a Renewal/Conversion Notice with respect to one or more LIBOR Loans, but such Revolving Credit Loans have not yet gone into effect, such notification shall be deemed to be void and (A) the Index Lead Borrower may borrow Revolving Credit Loans shall immediately convert to which are Base Margin Loans by giving a substitute Renewal/Conversion Notice. Upon the expi- ration of the Interest Period for any LIBOR Loan which is outstanding on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) imposenotification, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation)LIBOR Loan shall thereafter constitute a Base Margin Loan.
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest error.
Appears in 1 contract
Samples: Loan and Security Agreement (Dynamics Research Corp)
Changed Circumstances. (a) Subject If the introduction of or any change in or in the interpretation of (in each case, after the date hereof) any law or regulation makes it unlawful, or any governmental authority asserts, after the date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make LIBOR Loans or to fund or maintain LIBOR Loans hereunder, such Lender shall notify the provisions Agent of this Agreementsuch event and the Agent shall notify the Borrowers of such event, and the right of the Borrowers to select LIBOR Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and the Borrowers shall have forthwith prepay in full all LIBOR Loans then outstanding, and shall pay all interest accrued thereon through the option (A) as date of any datesuch prepayment or conversion, to convert unless the Borrowers, within three Business Days after such notice from the Agent, request the conversion of all or any part of Base Margin LIBOR Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin then outstanding into Prime Rate Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation date of such repayment or proposed conversion thereof would violate is not the provisions last day of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuingthe Interest Period applicable to such LIBOR Loan, the Borrowers shall also pay any amount due pursuant to Section 4.10.
(b) The Administrative Agent’s determination If the Agent shall, at least one Business Day before the date of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent any requested Loan or the Lenders determineseffective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a LIBOR Loan (each such requested Loan made and Loan to be converted or continued, in good faith (which determination shall be conclusivea "Pending Loan"), prior notify the Borrowers that LIBOR will not adequately reflect the cost to the commencement Lenders of making or funding such Pending Loan as a LIBOR Loan or that the Interbank Offered Rate is not reasonably determinable, including from any Interest Period that (A) U.S. Dollar deposits interest rate reporting service of sufficient amount and maturity for funding recognized standing, then the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course right of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to select LIBOR Loans for such Pending Loan, any subsequent Loan or in connection with any subsequent conversion or continuation of any Loan shall be Index Loans or suspended until the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon Borrowers that the end of the applicable Interest Periodcircumstances causing such suspension no longer exist, and (2) no additional Index Loans each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made until such circumstances are curedor continued as or converted into a Prime Rate Loan.
(c) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements included in the LIBOR Reserve Percentage) in or in the interpretation of, in each case after the date hereof, any law or regulation (except to the introduction ofextent such introduction, change or interpretation affects taxes measured by net income), or (ii) the compliance with a guideline or request (except to the extent such guideline or request affects taxes measured by net income) from any central bank or other governmental authority (whether nor not having the force of law) made after the date hereof, there shall be any increase in the cost to any Lender of agreeing to make or making, funding or maintaining LIBOR Loans (other than as separately provided for in Section 4.15(d)), then the Borrowers shall from time to time, within thirty (30) days after demand by such Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost.
(d) If (i) the adoption of or change in in, after the date hereof, any applicable law, treaty, rule, regulation or guideline regarding capital requirements for banks or bank holding companies, or any change, after the date hereof, in the interpretation or administration application thereof by any governmental authority charged with the interpretation or administration thereof, or (ii) compliance by such Lender with any guideline, request or directive, made or promulgated after the date hereof, of any such entity regarding capital adequacy (whether or not having the force of law), has the effect of reducing the return on a Lender's capital as a consequence of its maintaining its Loans or commitment to make Loans hereunder to a level below that which such Lender could have achieved but for such adoption, change or compliance (taking into consideration such Lender's policies with respect to capital adequacy immediately before such adoption, change or compliance and assuming the full utilization of such Lender's capital immediately before such adoption, change or compliance) or if any change in law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other fiscal, monetary or other governmental authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans subjects a Lender to any Tax or change the basis of taxation of tax with respect to payments to the Agent or the Lenders of principal or interest due from or any other amounts payable hereunder by the Borrowers or otherwise with respect to the Agent or the Lenders hereunder transactions contemplated hereby (other than a change in the taxation of except for taxes on the overall net income of such Lender imposed by the United States of America or any political subdivision thereof), in each case by any amount deemed by such Lender to be material, then such Lender shall promptly after its determination of such occurrence notify the Borrowers and the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is . The Borrowers agree to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or Agent, for the Lendersaccount of such Lender, on demand, such as an additional amounts as the Administrative Agent or the Lenders shall, fee from time to time, determine are sufficient within thirty (30) days after demand by such Lender, such amount as such Lender certifies to be the amount that will compensate and indemnify the Agent it for such reduction or Lenders from such increased cost tax.
(e) Before giving any notice pursuant to Section 4.15(a) or reduced amount. Each making any demand pursuant to Sections 4.15(c) or (d), each Lender will agrees to use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different lending office for if the Liabilities if making of such a designation will would avoid the need forfor such notice or demand, or reduce the amount of such compensation increased cost, reduction in return or tax and will would not, in the reasonable opinion judgment of such Lender (includingLender, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that be otherwise disadvantageous to such Lender may bear or suffer by reason of such designation)Lender.
(f) The Agent and Lenders A certificate of the Lender claiming compensation under Sections 4.15(c) or (d) shall receive payments be conclusive in the absence of manifest error. Such certificate shall set forth the nature of the occurrence giving rise to such compensation, the additional amount or amounts of principal of and interest with respect to the Index Loans free and clear ofbe paid to it hereunder, and without deduction for, any Taxesthe method by which such amounts were determined. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any In determining such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such a Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax may use any reasonable averaging and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorattribution methods.
Appears in 1 contract
Samples: Loan and Security Agreement (Safety Components International Inc)
Changed Circumstances. (a) Subject to If the provisions introduction of this Agreement, the Borrowers shall have the option (A) as of any date, to convert all or any part change in or in the interpretation of Base Margin Loans to(in each case, after the date hereof) any law or regulation makes it unlawful, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, in good faith (which determination shall be conclusive), prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) Ifgovernmental authority asserts, after the date hereof, the introduction ofthat it is unlawful, or for any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel Lender to the Agent or the Lenders, make it unlawful for the Agent or the Lenders perform its obligations hereunder to make LIBOR Loans or to fund or maintain Index LoansLIBOR Loans hereunder, then such Lender shall notify the Administrative Agent of such event and the Administrative Agent shall promptly notify the Lead Borrower Borrowers of such event, and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day right of the then existing Borrowers to select LIBOR Loans for any subsequent Interest Period or on such earlier date as required by law and (B) no additional Index Loans in connection with any subsequent conversion of any Loan shall be made suspended until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Administrative Agent or the Lenders), shall notify the Borrowers agree to indemnify that the Agent circumstances causing such suspension no longer exist, and the Lenders against any loss (including any loss on redeployment of Borrowers shall forthwith prepay in full all LIBOR Loans then outstanding and shall pay all interest accrued thereon through the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result date of such prepayment or failure conversion, unless the Borrowers, within three Business Days after such notice from the Administrative Agent, request the conversion of all LIBOR Loans then outstanding into Base Rate Loans; provided, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to occursuch LIBOR Loans, the Borrowers shall also pay any amount due pursuant to Section 4.10.
(eb) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent shall, at least one Business Day before the date of any requested Borrowing or Lenders shall determine the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a LIBOR Loan (which determination shall each such requested Borrowing made and Loan to be conclusive) converted or continued, a "Pending Loan"), notify the Borrowers that the result of the foregoing is to increase LIBOR will not adequately reflect the cost to the Agent or the Lenders of making or maintaining the Index Loans funding such Pending Loan as a LIBOR Loan or to reduce the amount that LIBOR is not determinable from any interest rate reporting service of principal or interest received by the Agent or Lenders hereunderrecognized standing, then the right of the Borrowers to select a LIBOR Loan for such Pending Loan, any subsequent Loan or in connection with any subsequent conversion or continuation of any Loan shall pay to the Agent or the Lenders, on demand, such additional amounts as be suspended until the Administrative Agent or shall notify the Lenders shall, from time to time, determine are sufficient to compensate and indemnify Borrowers that the Agent or Lenders from circumstances causing such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear ofsuspension no longer exist, and without deduction foreach Pending Loan and each such subsequent Loan requested to be made, any Taxes. If (A) the Agent continued or any Lender converted shall be subject to any Tax in respect of any Index Loans made or any part thereof or, (B) the Borrowers shall be required to withhold continued as or deduct any Tax from any such amount, the Index converted into a Base Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorLoan.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Mastec Inc)
Changed Circumstances. In the event that:
(a) Subject to on any date on which the provisions of this Agreement, Applicable LIBOR Rate would otherwise be set the Borrowers Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of interest to be applicable to LIBOR Pricing Option has been made impracticable or unlawful by (A) the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits occurrence of a comparable amount for contingency that materially and adversely affects the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, the introduction ofLondon interbank market, or (B) compliance by any change Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(ii) the LIBOR Rate shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or no longer represent the effective cost to the Lenders for U.S. dollar deposits in or the London interbank market, as applicable for the account of or loans bydeposits in which they regularly participate; then, or any other acquisition of funds or disbursements byand in such event, the Agent or shall forthwith so notify the Lenders; (B) subject Borrower thereof. Until the AgentAgent notifies the Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to and the Agent or to allow election by the Lenders Borrower of principal or interest due from a LIBOR Pricing Option shall be suspended. If at the Borrowers to time the Agent or so notifies the Lenders hereunder (other than a change in Borrower, the taxation of the overall net income of Borrower has previously given the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result a Notice of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest Continuation/Conversion with respect to a LIBOR Pricing Option, but the Index Loans free LIBOR Pricing Option requested therein has not yet gone into effect, such Notice of Continuation/Conversion shall automatically be deemed to be withdrawn and clear of, and without deduction for, any Taxesbe of no force or effect. If (A) the Agent or any Lender Upon such date as shall be subject to any Tax specified in respect of any Index Loans or any part thereof or, such notice (B) which shall not be earlier than the Borrowers shall be required to withhold or deduct any Tax from any date such amountnotice is given), the Index LIBOR Pricing Option with respect to all LIBOR Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax terminated and the Borrowers Borrower shall provide the Agent or pay all interest due on such Lender with a statement detailing the amount of LIBOR Rate Loans and any such Tax actually amounts required to be paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers pursuant to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorSection 4.7.
Appears in 1 contract
Samples: Credit Agreement (Bright Horizons Family Solutions Inc)
Changed Circumstances. In the event that:
(ai) Subject to on any date on which the provisions of this Agreement, LIBOR Rate would otherwise be set the Borrowers Bank shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, reasonably determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period ) that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate LIBOR Base, or
(ii) conclusive) that:
(A) the making or continuation of interest or conversion of any Loan to be applicable to the Revolving Credit Loans requested a LIBOR Loan has been made impracticable or unlawful by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and interbank market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, or any change Bank in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any governmental authority request or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day directive of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders)such governmental authority, the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall law (A) imposein any such case, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders"Legal Impediment"); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).or
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers LIBOR Rate shall no longer represent the effective cost to the Bank for United States dollar deposits in the interbank market for deposits in which it regularly participates; or
(C) that U.S. dollar deposits in immediately available funds in an amount approximately equal to the outstanding principal balance of the Line of Credit are not readily available to the Bank's Eurodollar Office for delivery on the first day of any Interest Period; then, and in any such event, the Bank shall forthwith so notify the Company by facsimile notice at least one (1) day prior to (i) the date that the LIBOR Rate is to be set, (ii) the commencement date of the applicable Interest Period or (iii) the occurrence of the applicable event, and the Interest Rate shall become the Prime Rate and shall remain the Prime Rate until the Bank determines and so notifies the Company that the circumstances giving rise to such notice no longer apply. Until the Bank notifies the Company that the circumstances giving rise to such notice no longer apply, the obligation of the Bank to allow selection by the Company of a LIBOR Loan (during the occurrence of such circumstances, referred to as "Affected Loans") shall be required to withhold or deduct any Tax from any such amountsuspended. If at the time the Bank so notifies the Company, the Index Rate applicable Company has previously given the Bank a Notice of Borrowing or a Notice of Continuation or Conversion with respect to one or more Affected Loans but such Index Loans borrowing or conversion has not yet gone into effect, such notification shall be adjusted by the Administrative Agent or such Lender deemed to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax be void and the Borrowers shall provide the Agent Company may only borrow or such Lender with convert to a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest errorPrime Rate Loan. If after any such adjustment any part as a result of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lendera Legal Impediment, the Agent or Bank shall incur Breakage Costs in converting from a LIBOR Loan, then the Company shall pay all such Lender, as applicable, shall reimburse the Borrowers Breakage Costs to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis Bank promptly upon its demand therefor shall be conclusive absent manifest errorfor its account.
Appears in 1 contract
Changed Circumstances. (a) Subject to The Agent may give the provisions of this Agreement, the Borrowers Lead Borrower notice that:
(i) The Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive)) on any day on which the Eurodollar rate would otherwise be set, prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances changes arising after the date of this Agreement affecting the London Interbank Eurodollar marketprincipal market in Eurodollars in which Fleet National Bank participates, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period such rate; or
(such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative ii) The Agent shall promptly notify the Lead Borrower and have determined in good faith (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans which determination shall be made until such circumstances are cured.final and conclusive) that:
(cA) If, after the date hereof, the introduction The continuation of, or conversion of any change Revolving Credit Loan to, a Eurodollar Loan has been made impracticable or unlawful by the occurrence of a contingency that materially and adversely affects the applicable market or compliance by the Agent or any Tranche A Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders); or
(B) subject The indices on which the Agent, interest rates for Eurodollar Loans are based shall no longer represent the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each any Tranche A Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, U.S. dollar deposits in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation)interbank market for deposits in which it regularly participates.
(fb) In the event that the Agent gives the Lead Borrower notice of an occurrence described in Section 2.20(a), then, until the Agent notifies the Lead Borrower that the circumstances giving rise to such notice no longer apply:
(i) The obligation of the Agent and Lenders of each Tranche A Lender to make Eurodollar Loans of the type affected by such changed circumstances or to permit the Lead Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall receive payments of amounts of principal of and interest be suspended.
(ii) Any notice which the Lead Borrower shall have given the Agent with respect to any Eurodollar Loan, the Index Loans free and clear oftime for action with respect to which has not occurred prior to the Agent's having given notice pursuant to Section 2.20(a), and without deduction forshall be deemed at the option of the Agent not to have been given.
(iii) Subject to the provisions of Section 2.9(e), the Lead Borrower may (and, with respect to any Taxes. If event described in Section 2.20(a)(ii), shall)
(A) cancel the Agent relevant borrowing or any Lender shall be subject to any Tax in respect conversion notice on the same date the Lead Borrower was notified of any Index Loans or any part thereof or, such event; and
(B) the Borrowers shall prepay or cause to be required to withhold or deduct prepaid any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest errorthen affected Eurodollar Loans.
Appears in 1 contract
Changed Circumstances. (a) Subject to In the provisions of this Agreement, event that the Borrowers Agent or any Lender shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (which determination shall be final and conclusive), prior to the commencement of any Interest Period that ) that:
(Ai) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the rate LIBOR Rate, or
(ii) the making of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans a LIBOR Loan or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing continuation of or conversion of any Loan to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D LIBOR Loan has been made unlawful due to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end occurrence of a contingency that materially and adversely affects the applicable Interest Period, and interbank foreign currency deposits market or (2) no additional Index Loans shall be made until such circumstances are cured.
(c) If, after compliance by the date hereof, the introduction of, Agent or any change Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law); or
(iii) the LIBOR Rate no longer represents the effective cost to any Lender for U.S. dollar deposits in the interbank market for deposits in which it regularly participates; then, and in any such event, the Agent or such Lender shall forthwith so notify the Borrowers. Until the Agent or such Lender notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Agent or such Lender to allow selection by the Borrowers of LIBOR Loans shall be suspended. If at the time the Agent or such Lender so notifies the Borrower, either of the Borrowers has previously made a LIBOR Request but such LIBOR Loan has not yet been made, continued or converted, such notification shall be deemed to be void and the applicable Borrower may borrow Base Rate Loans by giving a substitute request therefor. Upon such date as shall be specified in such notice (Awhich shall not be earlier than the date such notice is given) imposethe Borrowers shall forthwith convert the relevant LIBOR Loans to Base Rate Loans in accordance with Section 2.3 hereof by giving a notice to the Agent.
(b) In case the adoption of or any change in any law, modify regulation, treaty or deem official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) imposes, modifies or deems applicable any assessmentdeposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of of, or loans by, or any other acquisition of funds or disbursements by, the Agent or any Lender (other than such requirements as are already included in the Lenders; determination of the LIBOR Rate), or
(Bii) subject the Agent, the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to imposes upon the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any Lender any other condition regarding the Index Loans with respect to its or the Agent’s or Lenders’ funding thereofBorrowers' performance under this Agreement, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of any of the foregoing is to increase the cost to any Lender, reduce the Agent income receivable by any Lender or impose any expense upon any Lender with respect to the Loans or the commitments of the Lenders of making or maintaining the Index Loans or to reduce the hereunder in an amount of principal or interest received by the Agent or Lenders hereunderwhich such Lender in good faith determines is material, then such Lender shall notify the Borrowers shall thereof as promptly as is reasonably practical. The Borrowers agree to pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation increase in cost, reduction in income or additional expense as and will notwhen such cost, in the reasonable opinion of such Lender (includingreduction or expense is incurred or determined, without limitation, upon presentation by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation).
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect of any Index Loans or any part thereof or, (B) the Borrowers shall be required to withhold or deduct any Tax from any such amount, the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers of such Tax and the Borrowers shall provide the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of a statement in the amount of such costs and setting forth a calculation thereof, which statement shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery deemed true and the basis therefor shall be conclusive correct absent manifest error."
8. A new Section 2.9 is added to the Loan Agreement to read as follows:
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Changed Circumstances. (a) Subject to The Agent may give the provisions Borrower notice of this Agreement, the Borrowers occurrence of the following:
(i) The Agent shall have the option (A) as of any date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Index Loans of various Interest Periods, (B) as of the last day of any Interest Period, to continue all or any portion of the relevant Index Loans as Index Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Index Loans to Base Margin Loans; and (D) at any time, to request new Revolving Credit Loans as Base Margin Loans; provided, that Revolving Credit Loans may not be continued as or converted to Index Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred and is continuing.
(b) The Administrative Agent’s determination of the Index Rate as provided above shall be conclusive. Furthermore, if the Administrative Agent or the Lenders determines, determined in good faith (on any day on which determination shall the rate for a LIBOR Loan would otherwise be conclusive)set, prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loans are not available to the Administrative Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of businessthat, or (B) by reason of circumstances changes affecting the London Interbank Eurodollar interbank market, adequate and fair means do not exist for ascertaining such rate on the rate basis provided for in the definition of interest to be applicable to the Revolving Credit Loans requested by the Borrowers to be Index Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Administrative Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Administrative Agent shall promptly notify the Lead Borrower and (1) all existing Index Loans shall convert to Base Margin Loans upon the end of the applicable Interest Period, and (2) no additional Index Loans shall be made until such circumstances are curedLIBOR Offer Rate.
(cii) If, The Agent shall have determined in good faith that:
(A) The continuation of or conversion of any Revolving Credit Loan to a LIBOR Loan has been made impracticable or unlawful by the occurrence of a change in law occurring after the date hereof, of this Agreement that materially and adversely affects the introduction of, applicable market or compliance by the Agent or any change Lender in good faith with any applicable lawlaw or governmental regulation, treaty, rule, regulation or guideline or in order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof by or with any request or directive of any such governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Index Loans, then the Administrative Agent shall promptly notify the Lead Borrower and (A) the Index Loans shall immediately convert to Base Margin Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Index Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Index Loan is paid prior to the last Business Day of any Interest Period or if an Index Loan does not occur on a date specified by the Lead Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Index Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment or failure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; ).
(B) subject The indices on which the Agent, interest rates for LIBOR Loans are determined shall no longer represent the Lenders or the Index Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or (C) impose on the Agent or the Lenders any other condition regarding the Index Loans or the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the effective cost to the Agent or the Lenders of making or maintaining the Index Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrowers shall pay to the Agent or the Lenders, on demand, such additional amounts as the Administrative Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount. Each any Lender will use reasonable efforts to designate a different lending office for the Liabilities if such designation will avoid the need for, or reduce the amount of such compensation and will not, U.S. dollar deposits in the reasonable opinion of such Lender (including, without limitation, by reason of any economic, legal, or regulatory cost or disadvantage that such Lender may bear or suffer by reason of such designation)interbank market for deposits in which it regularly participates.
(fb) In the event that the Agent gives the Borrower notice of an occurrence described in Section 2-18(a), then, until the Agent notifies the Borrower that the circumstances giving rise to such notice no longer apply:
(i) The obligation of the Agent and Lenders of each Lender to make LIBOR Loans of the type affected by such changed circumstances or to permit the Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall receive payments be suspended.
(ii) Any notice which the Borrower had given the Agent with respect to any LIBOR Loan, the time for action with respect to which has not occurred prior to the Agent's having given notice pursuant to Section 2-18(a), shall be deemed at the option of amounts the Agent to not having been given and such loan shall be made or continued as, or converted into, as appropriate, a Base Margin Loan.
(iii) Subject to the provisions of principal of Section 2-11, the Borrower may (and interest shall, with respect to the Index Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or any Lender shall be subject to any Tax in respect occurrence of any Index Loans event described in Section ), cancel the relevant borrowing or any part thereof or, (B) conversion notice on the Borrowers shall be required to withhold or deduct any Tax from any such amount, same date the Index Rate applicable to such Index Loans shall be adjusted by the Administrative Agent or such Lender to reflect all additional costs incurred by the Agent or such Lender in connection with the payment by the Agent or such Lender or the withholding by the Borrowers Borrower was notified of such Tax and event, or if the Borrowers shall provide LIBOR Loan is then outstanding, prepay the Agent or such Lender with a statement detailing the amount of any such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be conclusive absent manifest error. If after any such adjustment any part of any Tax paid by the Agent or such Lender is subsequently recovered by the Agent or such Lender, the Agent or such Lender, as applicable, shall reimburse the Borrowers to the extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such Lender setting forth the amount of such recovery and the basis therefor shall be conclusive absent manifest erroraffected LIBOR Loan.
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