Changed Circumstances. (a) 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate 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 Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10. (b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.
Appears in 2 contracts
Sources: Loan and Security Agreement (Burke Industries Inc /Ca/), Loan and Security Agreement (Burke Industries Inc /Ca/)
Changed Circumstances. In the event that:
(ai) If on any date on which the introduction LIBOR Rate would otherwise be set the Bank shall have reasonably determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the 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 or conversion of any Loan to a LIBOR Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the interbank market or (2) compliance by the 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 interpretation or administration thereof or with any request or directive of any such governmental authority, whether or not having the force of law (in or any such case, a "Legal Impediment"); or
(B) the LIBOR Rate shall no longer represent the effective cost to the Bank for United States dollar deposits in the interpretation 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 (in each case, after 1) day prior to (i) the date hereofthat the LIBOR Rate is to be set, (ii) any law the commencement date of the applicable Interest Period or regulation makes it unlawful, or any Governmental Authority asserts, after (iii) the date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify occurrence of the Agent of such event and the Agent shall notify the Borrower of such applicable event, and the right of Interest Rate shall become the Borrower to select Eurodollar Prime Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan and shall be suspended remain the Prime Rate until the Agent shall notify Bank determines and so notifies the Borrower Company that the circumstances causing giving rise to such suspension notice no longer exist, and apply. Until the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through Bank notifies the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower Company that the circumstances causing giving rise to such suspension notice no longer existapply, and each Pending the obligation of the Bank to allow selection by the Company of a LIBOR Loan and each (during the occurrence of such subsequent Loan requested circumstances, referred to as "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 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 made, continued void and the Company may only borrow or converted shall be made or continued as or converted into convert to a Prime Rate Loan. If as a result of a Legal Impediment, the Bank shall incur Breakage Costs in converting from a LIBOR Loan, then the Company shall pay all such Breakage Costs to the Bank promptly upon its demand therefor for its account.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Meditrust), Revolving Credit Agreement (Meditrust Corp)
Changed Circumstances. In the event that:
(a) If on any date on which 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 Eurodollar Applicable LIBOR Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and would otherwise be set the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or have determined in connection with any subsequent conversion of any Loan good faith (which determination shall be suspended until final and conclusive) that adequate and fair means do not exist for ascertaining the Agent shall notify the Borrower that the circumstances causing such suspension no longer existLIBOR Rate, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loansas applicable; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.or
(b) If at any time the Agent shallshall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank 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 (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at least one Business Day before 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. Upon such date as shall be specified in such notice (which shall not be earlier than the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOANnotice is given), notify the Borrower LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the Eurodollar Rate will not LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders Lenders. The determination of making or funding such Pending Loan as a Eurodollar Rate Loan or that whether there is an appropriate index meeting the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standingforegoing requirements, then and the right determination of the Borrower to select Eurodollar Rate Loan for spread above such Pending Loanindex, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loanby agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative index.
Appears in 2 contracts
Sources: Credit Agreement (American Skiing Co /Me), Credit Agreement (American Skiing Co /Me)
Changed Circumstances. (a) If Subject to the introduction provisions of this Agreement, the Borrowers shall have the option (A) as of any date, to convert all or any change 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 interpretation London Interbank Eurodollar market in the ordinary course of (in each case, after the date hereof) any law or regulation makes it unlawfulbusiness, or any Governmental Authority asserts(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, that 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 unlawfulcured.
(d) If, for any Lender reason, an Index Loan is paid prior to perform 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 obligations hereunder request (other than as a result of a default by the Agent or the Lenders), the Borrowers agree to make Eurodollar Rate Loans 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 Eurodollar such Index Rate Loans hereunder, such Lender shall notify Loan) cost or expense incurred by the Agent of such event and or the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate 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 Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date Lenders as a result of such prepayment or conversionfailure to occur.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, unless modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the Borroweraccount of or loans by, within three Business Days after such notice from or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, requests the conversion Lenders or the Index Loans to any Tax or change the basis of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if taxation of payments to the date Agent or the Lenders of such repayment principal or proposed conversion is not interest due from the last day Borrowers to the Agent or the Lenders hereunder (other than a change in the taxation of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If overall net income of the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of Lenders); or (C) impose on the Agent or the Lenders any conversion other condition regarding the Index Loans or continuation of an existing Loan to the Agent’s or Lenders’ funding thereof, and the Administrative Agent or Lenders shall determine (which determination shall be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower conclusive) that the Eurodollar Rate will not adequately reflect result of the foregoing is to increase the cost to the Agent or the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan maintaining the Index Loans or that to reduce the Interbank Offered Rate is not determinable from any amount of principal or interest rate reporting service of recognized standingreceived by the Agent or Lenders hereunder, then the right 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 Borrower 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 select Eurodollar Rate Loan for such Pending Loanthe Index Loans free and clear of, and without deduction for, any subsequent Revolving Credit Loan 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 the payment by the Agent or continuation 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 Loan such Tax actually paid by the Borrowers. Determination by the Administrative Agent or such Lender of the amount of such costs shall be suspended until 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 notify reimburse the Borrower that Borrowers to the circumstances causing extent of the amount so recovered. A certificate of an officer of the Administrative Agent or such suspension no longer exist, Lender setting forth the amount of such recovery and each Pending Loan and each such subsequent Loan requested to be made, continued or converted the basis therefor shall be made or continued as or converted into a Prime Rate Loanconclusive absent manifest error.
Appears in 2 contracts
Sources: Loan and Security Agreement (Mothers Work Inc), Loan and Security Agreement (Mothers Work Inc)
Changed Circumstances. (a) If In the introduction of event that:
(i) on any date on which the Eurodollar Rate would otherwise be set the Lender shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the 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 any change in or in the interpretation of (in each case, after the date hereof) any law or regulation makes it unlawfulcontinuation of, or any Governmental Authority asserts, after the date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan to, a Eurodollar Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the interbank eurodollar market or (2) compliance by the Lender 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 (whether or not having the force of law); or
(B) the Eurodollar Rate shall be suspended until no longer represent the Agent 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 causing giving rise to such suspension notice no longer existapply, and 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 forthwith prepay 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 full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the AgentLender (which shall not be earlier than the date such notice is given) the Borrower shall, requests with respect to the conversion of all Eurodollar Rate outstanding Affected Loans, be deemed to have converted such Affected Loans then outstanding into Prime to Base Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable but shall remain obligated to such Eurodollar Rate Loan, the Borrower shall also pay any amount due amounts required to be paid pursuant to SECTION 3.10Section 2.16.
(b) If In case any law, regulation, treaty or official directive or the Agent shallinterpretation 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), at least one Business Day before 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account 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 Loan Document, and the result of any requested Revolving Credit Loan or of the effective date of any conversion or continuation of an existing Loan foregoing is to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect increase the cost to the Lenders Lender, reduce the income receivable by the Lender or impose any expense upon the Lender with respect to any Loans or any payments made under or with respect to the Letters of making or funding such Pending Loan as a Eurodollar Rate Loan or that Credit, the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan Lender shall be suspended until the Agent shall promptly notify the Borrower thereof. The Borrower agrees to pay to the Lender the amount of such 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 Lender of a written statement of such amount and setting forth in reasonable detail the Lender’s calculation thereof, which statement shall be deemed true and correct absent manifest error. Notwithstanding anything to the contrary in this Section, the Borrower shall not be required to compensate the Lender pursuant to this Section for any amounts incurred more than 180 days prior to the date that the Lender notifies the Borrower of the Lender’s intention to claim compensation therefor; provided that, if the circumstances causing giving rise to such suspension no longer existclaim have a retroactive effect, and each Pending Loan and each then such subsequent Loan requested to be made, continued or converted 180 day period shall be made or continued as or converted into a Prime Rate Loanextended to include the period of such retroactive effect.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Open Link Financial, Inc.), Revolving Credit and Term Loan Agreement (Open Link Financial, Inc.)
Changed Circumstances. (a) 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 the Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunderLIBOR Loans, such the Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate LIBOR Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended until the Agent Lender shall notify the Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate LIBOR Loans then outstanding outstanding, and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loansprepayment; PROVIDEDprovided, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate LoanLIBOR Loans, the Borrower shall also pay any amount due pursuant to SECTION 3.10Section 3.7.
(b) If the Agent Lender shall, at least one Business Day before prior to the date disbursement of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate LIBOR Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN"Pending Loan"), notify the Borrower that the Eurodollar Rate LIBOR will not adequately reflect the cost to the Lenders Lender of making or funding such Pending Loan as a Eurodollar Rate LIBOR Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan LIBOR Loans for such Pending Loan, any subsequent Revolving Credit Loan Loan, or in connection with any subsequent conversion or continuation of any Loan Loan, shall be suspended until the Agent Lender shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Loan comprising each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.
Appears in 2 contracts
Sources: Loan and Security Agreement (International Comfort Products Corp), Loan Agreement (International Comfort Products Corp)
Changed Circumstances. In the event that:
(a) If on any date on which the introduction of or any change Applicable LIBOR Rate would otherwise be set the Bank shall have determined in or in the interpretation of good faith (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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan which determination shall be suspended until final and conclusive) that adequate and fair means do not exist for ascertaining the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate LoansLIBOR Rate; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.or
(b) If at any time the Agent shallBank shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of a LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by the Bank in good faith with any applicable law or governmental or other applicable regulation, at least one Business Day before guideline or order or interpretation or change thereof by any governmental or other authority charged with the date interpretation or administration thereof or with any request or directive of any requested Revolving Credit Loan such governmental or other authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding Bank for U.S. dollar deposits in the London interbank market, as applicable for deposits in which it regularly participates; then, and in such Pending Loan as a Eurodollar Rate Loan or that event, the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan Bank shall be suspended until the Agent shall forthwith so notify the Borrower Company thereof. Until the Bank notifies the Company that the circumstances causing giving rise to such suspension notice no longer existapply, and each Pending Loan and each the obligation of the Bank to 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 subsequent Loan requested Pricing Notice shall automatically be deemed to be madewithdrawn and be of no force or effect. If circumstances described in clause (b)(i)(B) arise, continued or converted then upon such date as shall be made or continued as or converted into a Prime specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to any new requests for LIBOR Rate LoanLoans shall be terminated, but any existing LIBOR Rate Loans may continue to be maintained through the end of the applicable Interest Period.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) If On any day on which the introduction rate for a LIBOR Loan would otherwise be set, the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining either such rate; or
(b) At any time that the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the continuation of 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 in 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 shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the interpretation of (interbank market for deposits in each casewhich they regularly participate; then, after the date hereof) and in 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended until the Administrative Agent shall forthwith so notify the Lead Borrower thereof. Until the Administrative Agent notifies the Lead Borrower that the circumstances causing giving rise to such suspension notice no longer existapply, the obligation of the Lenders to make LIBOR 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 or any portion of the Term Loan shall be suspended. If at the time the Administrative Agent 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 the Lead Borrower shall forthwith prepay in full all Eurodollar Rate may only borrow Base Margin Loans then outstanding and shall pay all interest accrued thereon through furnish a substitute Renewal/Conversion Notice. Upon the expiration of the Interest Period for any LIBOR Loan which is outstanding on the date of such prepayment or conversionnotification, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date amount of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any LIBOR Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into thereafter constitute a Prime Rate Base Margin Loan.
Appears in 1 contract
Changed Circumstances. (ai) 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 assertsIf, after the date hereof, the introduction of, or any change in, any applicable 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 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 (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 reserve (including, without limitation, any reserve imposed by the Federal Reserve Board), special deposit or similar requirement against assets of Bank, deposits with or for the account of or credit extended by Bank, or shall impose on Bank or the foreign exchange and interbank markets any other condition affecting the Note; and the result of any of the foregoing is to increase the cost to Bank of maintaining any LIBOR-Based Rate or; to reduce the amount of any sum received or receivable by Bank under the Note in respect of interest at the LIBOR-Based Rate; then the 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 Bank such additional amount or amounts as will compensate Bank for such increased cost or reduction. Bank will promptly notify Borrower of any event of which it has knowledge which will entitle Bank to compensation pursuant to this Subparagraph 2.4 (i); provided, however, that Bank shall incur no liability whatsoever to Borrower in 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 shall be prima facie evidence thereof.
(ii) If, at any time, Bank shall determine in good faith that, by reason of circumstances affecting the foreign exchange and interbank markets generally, deposits in 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 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 unlawfulnot 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 reasonably request to make the Loan Documents consistent with the Bank's standard terms for LIBOR-Based Loans payable in Dollars.
(iii) If, after the date hereof, the introduction of, or any Lender change in, any applicable 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 perform honor its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar any LIBOR-Based Rate Loans hereunderor make an Optional Currency Advance, Bank shall promptly give notice thereof to Borrower. Thereafter, until Bank notifies Borrower that such Lender shall notify circumstances no longer exists, (A) the Agent obligations of such event and Bank to make available the Agent shall notify the Borrower of such event, LIBOR-Based Rate or Optional Currency Advances and the right of the Borrower to select Eurodollar convert any rate to a LIBOR-Based Rate Loans for any subsequent or receive Optional Currency Advances shall be suspended, and (B) if Bank may not lawfully continue to maintain a LIBOR-Based Rate or extend Optional Currency Advances, as the case may be, to the end of the then current Interest Period or applicable thereto, the Loan shall, subject to the following sentence hereof, be immediately due in connection with any subsequent conversion the event of any Loan shall be suspended until an Optional Currency Advance. Notwithstanding the Agent shall notify foregoing, in the Borrower event that the circumstances causing such suspension no longer existBank 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 forthwith prepay in full be responsible for paying all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of costs or expenses arising from such prepayment or conversion, unless including those set forth in Section 2.4(i) hereof. In the Borrower, within three Business Days after such notice from event the Agent, requests Bank is able to convert the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable Advance to such Eurodollar Rate Loanan Advance payable in Dollars, the Borrower shall also pay any amount due pursuant will sign such amendments to SECTION 3.10the Loan Documents as the Bank may reasonably request to make the Loan Documents consistent with the Bank's standard terms for LIBOR-Based Loans payable in Dollars.
(biv) If the Agent shall, at least one Business Day before the date The provisions of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan Sections 2.4 (each such requested Revolving Credit Loan made h) and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost (i) shall similarly inure to the Lenders of making benefit to any party to whom the Lender sells an interest, or funding such Pending Loan participates on interest herein, as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower authorized pursuant to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate LoanSection 8.9 hereof.
Appears in 1 contract
Changed Circumstances. In the event that:
(ai) If on any date on which the introduction LIBOR Rate would otherwise be set the Administrative Agent shall have reasonably determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Base, or
(ii) at any time the Administrative Agent shall have reasonably determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of or conversion of any Loan to a LIBOR Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the interbank market or (2) compliance by the 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 interpretation or administration thereof or with any request or directive of any such governmental authority, whether or not having the force of law (in any such case, a "Legal Impediment"); or
(B) the LIBOR Rate shall no longer represent the effective cost to the Administrative Agent or any Bank for United States dollar deposits in the interpretation 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 Administrative Agent's Eurodollar Office for delivery on the first day of any Interest Period; then, and in any such event, the Administrative Agent shall forthwith so notify the Company by facsimile notice at least one day prior to (in each case, after i) the date hereofthat the LIBOR Rate is to be set, (ii) any law the commencement date of the applicable Interest Period or regulation makes it unlawful, or any Governmental Authority asserts, after (iii) the date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify occurrence of the Agent of such event and the Agent shall notify the Borrower of such applicable event, and the right of Interest Rate shall become the Borrower to select Eurodollar Prime Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan and shall be suspended remain the Prime Rate until the Administrative Agent shall notify determines and so notifies the Borrower Company that the circumstances causing giving rise to such suspension notice no longer exist, and apply. Until the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through Administrative Agent notifies the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower Company that the circumstances causing giving rise to such suspension notice no longer existapply, and each Pending the obligation of the Administrative Agent to allow selection by the Company of a LIBOR Loan and each (during the occurrence of such subsequent Loan requested 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 made, continued void and the Company may only borrow or converted shall be made or continued as or converted into 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 for its account and/or the account of any such Bank.
Appears in 1 contract
Changed Circumstances. (a) If In the introduction event that:
(i) on any date on which the Eurodollar Rate would otherwise be set, BankBoston shall have determined in good faith (which determination shall be final and conclusive) that adequate and reasonable means do not exist for ascertaining the Eurodollar Rate, or
(ii) the Majority Lenders shall notify the Agent that they have determined in good faith (which determination shall be final and conclusive) that the Eurodollar Rate shall no longer represent the effective cost to the Majority Lenders of making or maintaining Eurodollar Advances to be made by them, or
(iii) any Lender shall notify the Agent 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 contingency that materially and adversely affects the interbank Eurodollar market or (B) compliance by such Lender in good faith with any Applicable Law 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 (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) Until the Agent notifies the Borrower that the circumstances giving rise to any notice given pursuant to Section 5.10(a) no longer apply, 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 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 in 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 (in each case, after whether or not having the date hereofforce of law):
(i) any law or regulation makes it unlawful, or any Governmental Authority asserts, after the date hereof, that it is unlawful, for subjects any Lender to perform 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, any Lender (other than the Reserve Percentage), or
(iii) imposes upon any Lender any other condition with respect to its obligations hereunder performance under this Agreement, and the result of any of the foregoing is to make Eurodollar Rate Loans increase the cost to such Lender, reduce the income receivable by such Lender or impose any expense upon such Lender with respect to fund or maintain Eurodollar Rate Loans hereunderany Advances, such Lender shall notify the Agent and the Borrower thereof. The Borrower agrees to pay to such Lender the amount of such event 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 Lender of a statement of the Agent amount and setting forth such Lender's calculation thereof, which statement shall be deemed true and correct absent manifest error, provided, that no Lender shall be entitled to charge nor shall the Borrower be obligated to pay any such amount relating to a period more than 90 days prior to the date on which such statement is presented.
(c) If any lender determines that (i) the adoption of 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 any such entity regarding capital adequacy (whether or not having the force of 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 full utilization of such Lender's capital) by any amount deemed by such Lender to be material, then such Lender shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate 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 Borrower that the circumstances causing such suspension no longer exist, and the Borrower thereof. The Borrower agrees to pay to such Lender the amount of such 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 forthwith prepay in full all Eurodollar Rate Loans then outstanding be deemed true and correct absent manifest error, provided, that no Lender shall be entitled to charge nor shall the Borrower be required to pay all interest accrued thereon through any such amount relating to a period more than 90 days prior to the date of on which such prepayment or conversion, unless the Borrower, within three Business Days after statement is presented. In determining such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continuedamount, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from Lender may use any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, reasonable averaging and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loanattribution methods.
Appears in 1 contract
Sources: Loan and Security Agreement (Synthetic Industries Inc)
Changed Circumstances. In the event that: ---------------------
(a) If on any day on which the introduction rate for a LIBOR Loan would otherwise be set, the Lender shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining either such rate; or
(b) at any time the Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the continuation of or conversion of any Revolving Credit 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 Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change in thereof by any governmental authority charged with the interpretation or administration thereof or with any request or directive of any such governmental authority (whether or not having the force of law); or
(ii) the indices on which the interest rates for LIBOR Loan shall no longer represent the effective cost to the Lender for U.S. dollar deposits in the interpretation of (interbank market for deposits in each casewhich it regularly participates; then, after and in any such event, 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall forthwith so notify the Borrower of such event, and thereof Until the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended until the Agent shall notify Lender notifies the Borrower that the circumstances causing giving rise to such suspension notice no longer existapply, the obligation of the 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 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 more LIBOR Loans, but such Revolving Credit Loans have not yet gone into effect, such notification shall be deemed to be void and the Borrower shall forthwith prepay in full all Eurodollar Rate may borrow Revolving Credit Loans then which are Base Margin Loans by giving a substitute Renewal/Conversion Notice. Upon the expiration of the Interest Period for any LIBOR Loan which is outstanding and shall pay all interest accrued thereon through on the date of such prepayment or conversionnotification, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date amount of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any LIBOR Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into thereafter constitute a Prime Rate Base Margin Loan.
Appears in 1 contract
Sources: Loan and Security Agreement (Number Nine Visual Technology Corp)
Changed Circumstances. In the event that:
(a) If on any date on which the introduction Applicable Eurodollar Rate would otherwise be set, the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the 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 the Eurodollar Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change in thereof by any governmental authority charged with the interpretation or administration thereof or with any request or directive of any such governmental authority (whether or not having the force of law); or
(ii) the Eurodollar Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the interpretation of (London interbank market, as applicable for deposits in each casewhich they regularly participate; then, after and in such event, 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender 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, the obligation of such event the Lenders and the Agent shall notify to allow election by the Borrower Borrowers of such event, and the right of the Borrower to select a Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan Pricing Option shall be suspended until 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 Eurodollar Pricing Notice shall notify 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 Borrower that date such notice is given), the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full Eurodollar Pricing Option with respect to all Eurodollar Rate Loans then outstanding shall be terminated and the Borrowers, jointly and severally, shall pay all interest accrued thereon through the date of due on such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable and any amounts required to such Eurodollar Rate Loan, the Borrower shall also pay any amount due be paid pursuant to SECTION 3.10Section 4.3.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.
Appears in 1 contract
Sources: Credit Agreement (Tweeter Home Entertainment Group Inc)
Changed Circumstances. (a) If In the introduction of event that:
(i) on any date on which the LIBOR Rate would otherwise be set the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the 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 any change in or in the interpretation of (in each case, after the date hereof) any law or regulation makes it unlawfulcontinuation of, or any Governmental Authority asserts, after the date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan to, a LIBOR Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the London interbank market or (2) compliance by the 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 interpretation or administration thereof or with any request or directive of any such governmental authority (whether or not haying the force of law); or
(B) the LIBOR Rate shall be suspended until no longer represent the effective cost to any Bank for United States dollar deposits in the London interbank market; then, and in any such event, the Administrative Agent shall promptly so notify the Borrower thereof in writing. Until the Administrative Agent notifies the Borrower that the circumstances causing giving rise to such suspension notice no longer existapply, 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 forthwith prepay be specified in full all Eurodollar Rate Loans then outstanding and such notice (which shall pay all interest accrued thereon through not be earlier than the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from is given) the AgentBorrower shall, requests with respect to the conversion 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 all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if 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 be applied to the date of such repayment or proposed conversion is Borrower so as not to discriminate against the last day Borrower vis-à-vis other customers of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10Bank.
(b) If In case any law, regulation, treaty or official directive or the Agent shall, at least one Business Day before interpretation or application thereof by any court or by any governmental authority charged with the date administration thereof or the compliance with any guideline or request of any requested Revolving Credit 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, the Administrative Agent or any Bank (other than such requirements as are already included in the determination of the LIBOR Rate), or
(iii) imposes upon the Administrative Agent or any Bank any other condition with respect to its performance under this Agreement or any other Loan or Document, and the effective date result of any conversion or continuation of an existing Loan the foregoing is to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect increase the cost to the Lenders Administrative Agent or such Bank, reduce the income receivable by the Administrative Agent or such Bank or impose any expense upon the Administrative Agent or such Bank with respect to any Loans or any payments made under or with respect to the Letters of making or funding such Pending Loan as a Eurodollar Rate Loan or that Credit, the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Administrative Agent shall promptly notify the Borrower that thereof. The Borrower agrees to pay to the circumstances causing Administrative Agent or such suspension no longer existBank the amount of such increase in cost, reduction in income or additional expense as and each Pending Loan when such cost, reduction or expense is incurred or determined, upon presentation by the Administrative Agent or such Bank of a written statement of such amount and each setting forth in reasonable detail the Administrative Agent’s or such subsequent Loan requested to be madeBank’s calculation thereof, continued or converted which statement shall be made or continued deemed true and correct absent manifest error. The provisions of this Section 2.10(b) shall be applied to the Borrower so as or converted into a Prime Rate Loannot to discriminate against the Borrower vis-à-vis other customers of the applicable Bank.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Mac-Gray Corp)
Changed Circumstances. In the event that: ---------------------
(a) If on any day on which the introduction rate for a Libor Rate Loan or a Cost of Funds Rate Loan would otherwise be set, the Bank shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining either such rate; or
(b) at any time the Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the making or continuation of or conversion of any loan to 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 market or (B) compliance by the Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change in thereof by any governmental authority charged with the interpretation or administration thereof or with any request or directive of any such governmental authority (whether or not having the force of law); or
(ii) the indices on which the interest rates for Libor Rate Loans shall no longer represent the effective cost to the Bank for U.S. dollar deposits in the interpretation of (interbank market for deposits in each casewhich it regularly participates; then, after and in any such event, 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender Bank shall notify the Agent of such event and the Agent shall forthwith so notify the Borrower of such event, and thereof. Until the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended until the Agent shall notify Bank notifies the Borrower that the circumstances causing giving rise to such suspension notice no longer existapply, the obligation of the Bank to make Libor Rate Loans or Cost of Funds Rate Loans of the type affected by such changed circumstances or to permit the Borrower to select Libor Rate or Cost of 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 shall forthwith prepay in full all Eurodollar may borrow under interest rate options otherwise available hereunder, by giving a substitute Notice of Borrowing or a Renewal/Conversion Notice. Upon the expiration of the Interest Period for any Libor Rate Loans then Loan or a Cost of Funds Rate Loan which is outstanding and shall pay all interest accrued thereon through on the date of such prepayment or conversionnotification, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date amount of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Libor Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service Cost of recognized standing, then the right of the Borrower to select Eurodollar Funds Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into thereafter constitute a Prime Floating Rate Loan.
Appears in 1 contract
Sources: Commercial Promissory Note and Loan Agreement (D M Management Co)
Changed Circumstances. In the event that:
(ai) If on any date on which 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 Eurodollar LIBOR Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and would otherwise be set the Agent shall have reasonably determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Base, or
(ii) at any time the Agent shall have reasonably determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of or conversion of any Loan to a LIBOR Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the interbank market or (2) compliance by the 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 interpretation or administration thereof or with any request or directive of any such governmental authority, whether or not having the force of law (in any such case, a "Legal Impediment"); or
(B) the LIBOR Rate shall no longer represent the effective cost to the Agent or any 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 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 Borrower 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 such the applicable Interest Period or (iii) the occurrence of the applicable event, and the right of Interest Rate shall become the Borrower to select Eurodollar Prime Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan and shall be suspended remain the Prime Rate until the Agent shall notify determines and so notifies the Borrower Company that the circumstances causing giving rise to such suspension notice no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If apply. Until the Agent shall, at least one Business Day before notifies the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower Company that the circumstances causing giving rise to such suspension notice no longer existapply, and each Pending the obligation of the Agent to allow selection by the Company of a LIBOR Loan and each (during the occurrence of such subsequent Loan requested 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 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 made, continued void and the Company may only borrow or converted shall be made or continued as or converted into convert to a Prime Rate Loan.. If as a result of a Legal
Appears in 1 contract
Changed Circumstances. (a) 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 governmental authority asserts, after the date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make Eurodollar Rate LIBOR Loans or to fund or maintain Eurodollar Rate LIBOR Loans hereunder, such Lender shall notify the Administrative Agent of such event and the Administrative Agent shall notify the Borrower Borrowers of such event, and the right of the Borrower Borrowers to select Eurodollar Rate LIBOR Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended until the Administrative Agent shall notify the Borrower Borrowers that the circumstances causing such suspension no longer exist, and the Borrower Borrowers shall forthwith prepay in full all Eurodollar Rate LIBOR Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the BorrowerBorrowers, within three Business Days after such notice from the Administrative Agent, requests request the conversion of all Eurodollar Rate LIBOR Loans then outstanding into Prime Base Rate Loans; PROVIDEDprovided, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate LoanLIBOR Loans, the Borrower Borrowers shall also pay any amount due pursuant to SECTION 3.10Section 4.10.
(b) If the Administrative Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan Borrowing or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate LIBOR Loan (each such requested Revolving Credit Loan Borrowing made and Loan to be converted or continued, a PENDING LOAN"Pending Loan"), notify the Borrower Borrowers that the Eurodollar Rate LIBOR will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate LIBOR Loan or that the Interbank Offered Rate LIBOR is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower Borrowers to select Eurodollar Rate a LIBOR Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Administrative Agent shall notify the Borrower Borrowers that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Base Rate Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Mastec Inc)
Changed Circumstances. In the event that:
(a) If on any date on which 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 Eurodollar Applicable LIBOR Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the 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 LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank 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 (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall forthwith so notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended until thereof. Until the Agent shall notify notifies the Borrower that the circumstances causing giving rise to such suspension notice no longer existapply, the obligation of the Lenders and the Agent to allow election by the Borrower of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the Borrower, the Borrower has previously given the Agent a Notice of Continuation/Conversion with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Notice of Continuation/Conversion 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 LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of due on such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar LIBOR Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable and any amounts required to such Eurodollar Rate Loan, the Borrower shall also pay any amount due be paid pursuant to SECTION 3.10Section 4.7.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.
Appears in 1 contract
Sources: Credit Agreement (Bright Horizons Family Solutions Inc)
Changed Circumstances. In the event that: ---------------------
(a) If on any date on which the introduction of or any change Applicable LIBOR Rate would otherwise be set the Bank shall have determined in or in the interpretation of good faith (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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan which determination shall be suspended until final and conclusive) that adequate and fair means do not exist for ascertaining the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate LoansLIBOR Rate; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.or
(b) If at any time the Agent shallBank shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of a LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market, at least one Business Day before or (B) compliance by the date 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 interpretation or administration thereof or with any request or directive of any requested Revolving Credit Loan such governmental authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding Bank for U.S. dollar deposits in the London interbank market, as applicable for deposits in which it regularly participates; then, and in such Pending Loan as a Eurodollar Rate Loan or that event, the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan Bank shall be suspended until the Agent shall forthwith so notify the Borrower Company thereof. Until the Bank notifies the Company that the circumstances causing giving rise to such suspension notice no longer existapply, and each Pending Loan and each the obligation of the Bank to 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 subsequent Loan requested Pricing Notice shall automatically be deemed to be madewithdrawn and be of no force or effect. If circumstances described in clause (b)(i)(B) arise, continued or converted then upon such date as shall be made or continued as or converted into a Prime specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to any new requests for LIBOR Rate LoanLoans shall be terminated, but any existing LIBOR Rate Loans may continue to be maintained through the end of the applicable Interest Period.
Appears in 1 contract
Changed Circumstances. (a) If In the introduction event that:
(i) on any date on which the Adjusted Eurodollar Rate would otherwise be set, the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the Interbank Offered Rate, or
(ii) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of or conversion of any Loan to a Eurodollar Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the Interbank Eurodollar market or (2) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change in thereof by any governmental authority charged with the interpretation or administration thereof or with any request or directive of any such governmental authority (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 interpretation 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) (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 each case, after 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 law, regulation, treaty or regulation makes it unlawful, official directive or the interpretation or application thereof by any Governmental Authority asserts, after court or by any governmental authority charged with the date hereof, that it is unlawful, for 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 perform 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, any Lender (other than such requirements as are already included in the determination of the Adjusted Eurodollar Rate), or
(iii) imposes upon any Lender any other condition with respect to its obligations hereunder performance under this Agreement, and the result of any of the foregoing is to make increase the cost to such Lender, reduce the income receivable by such Lender or impose any expense upon such Lender with respect to any outstanding Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunderLoans, such Lender shall notify the Agent Company thereof. The Borrowers, jointly and severally, agrees to pay to such Lender the amount of such event 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 Lender of a statement in the Agent shall notify the Borrower of amount and setting forth such eventLender's calculation thereof, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan which statement shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, deemed true and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10correct absent manifest error.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.
Appears in 1 contract
Sources: Credit Agreement (Brookstone Inc)
Changed Circumstances. (a) If 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 or continuation thereof or otherwise in connection with any request for a LIBOR Rate Loan, an Alternative Currency Revolving Credit Loan or a conversion to or continuation thereof, if for any reason (i) the introduction of or any change in or Administrative Agent shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that deposits are not being offered to banks in the interpretation applicable interbank market (including, without limitation, the London interbank Eurodollar market) for the applicable amount and Interest Period of such Loan, (ii) the Administrative Agent shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that reasonable and adequate means do not exist for ascertaining the LIBOR Rate for the Interest Period with respect to a proposed LIBOR Rate Loan, (iii) a fundamental change has occurred in each casethe foreign exchange or interbank markets with respect to any Alternative Currency (including, after without limitation, changes in national or international financial, political or economic conditions or currency exchange rates or exchange controls), (iv) it has become otherwise materially impractical for 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 Lenders to make Eurodollar any Alternative Currency Revolving Credit Loans or (v) the Required Lenders shall determine (which determination shall be conclusive and binding absent manifest error) that the LIBOR Rate does not adequately and fairly reflect the cost to such Lenders of making or maintaining such Loans during such Interest Period, then the Administrative Agent shall promptly give notice thereof to the Borrower. Thereafter, until the Administrative Agent notifies the Borrower that such circumstances no longer exist, the obligation of the Lenders to make LIBOR Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar convert any Loan to or continue any Loan as a LIBOR Rate Loan or an Alternative Currency Revolving Credit Loan, as applicable, shall be suspended, and:
(A) in the case of LIBOR Rate Loans for any subsequent Interest Period or denominated in connection with any subsequent conversion of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer existDollars, and the Borrower shall forthwith prepay either (1) repay in full all Eurodollar Rate Loans (or cause to be repaid in full) the then outstanding and shall pay all principal amount of each such LIBOR Rate Loan, together with accrued interest accrued thereon through the date of such prepayment or conversion(subject to Section 4.1(d)), unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not on the last day of the then current Interest Period applicable to such Eurodollar LIBOR Rate LoanLoan or (2) convert the then outstanding principal amount of each such LIBOR Rate Loan to a Base Rate Loan as of the last day of such Interest Period; and
(B) in the case of LIBOR Rate Loans denominated in an Alternative Currency, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
either (b1) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan repay in full (or the effective date of any conversion or continuation of an existing Loan cause to be made or continued as or converted into a Eurodollar Rate Loan (repaid in full) the then outstanding principal amount of each such requested Revolving Credit Loan made and Loan LIBOR Rate Loan, together with accrued interest thereon (subject to be converted or continued, a PENDING LOANSection 4.1(d)), notify on the Borrower that last day of the Eurodollar Rate will not adequately reflect the cost then current Interest Period applicable to the Lenders of making or funding such Pending Loan as a Eurodollar LIBOR Rate Loan or that (2) convert the Interbank Offered then outstanding principal amount of each such LIBOR Rate is not determinable from any interest rate reporting service of recognized standing, then the right Loan to a Base Rate Loan denominated in Dollars as of the Borrower to select Eurodollar Rate Loan for last day of such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate LoanInterest Period.
Appears in 1 contract
Sources: Credit Agreement (Owens Corning)
Changed Circumstances. (a) If In the introduction event that:
(i) on any date on which the Adjusted LIBOR Rate would otherwise be set, Agent or any Bank shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the 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 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan to a LIBOR Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the London interbank eurodollar market or the market for certificates of deposit maintained by dealers in San Francisco of recognized standing or (2) compliance by 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 interpretation or administration thereof or with any request or directive of any such governmental authority (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 U.S. dollar deposits in the interbank market for deposits in which it regularly participates;
(a) (herein called "Affected Loans") shall be suspended until suspended. If at the time Agent so notifies Borrower, Borrower has previously given 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 notify the be deemed to be void and Borrower that the circumstances causing 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 suspension no longer exist, and the Borrower date as shall forthwith prepay be specified in full all Eurodollar Rate Loans then outstanding and such notice (which shall pay all interest accrued thereon through not be earlier than the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the given) Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before with respect to the date of outstanding Affected Loans, prepay the same, together with interest thereon and any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan amounts required to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.paid pursuant to
Appears in 1 contract
Changed Circumstances. (a) If prior to the introduction first day of any Interest Period:
(i) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining Term SOFR for such Interest Period, or
(ii) the Administrative Agent shall have received notice from the Majority Lenders that Term SOFR 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 making or maintaining their affected Loans during such 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 affected SOFR Loans 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, the Borrower may cancel the request for such SOFR Loan 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 SOFR Loans shall be continued as ABR Loans and (y) any outstanding SOFR Loans shall be converted, on the first day of such Interest Period, to ABR Loans. Until such notice has been withdrawn by the Administrative Agent, no further SOFR Loans in Dollars shall be made or continued as such, nor shall the Borrower have the right to convert ABR Loans to SOFR 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 to this Agreement or any change in or in other Loan Document.
(iii) The Administrative Agent will promptly notify the interpretation 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 subsection 3.6(b)(iv). Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this subsection 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 any other party to this Agreement or any other Loan Document, except, in each case, after as expressly required pursuant to this subsection 3.6(b).
(iv) Notwithstanding anything to the date hereofcontrary 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) and either (1) any law tenor for such Benchmark is not displayed on a screen or regulation makes it unlawfulother information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (2) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or any Governmental Authority assertsis no longer, after the date hereof, subject to an announcement that it is unlawfulnot or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a given Benchmark, (A) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period denominated in Dollars and, failing that, in the case of any request for any Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunderaffected SOFR Loans, such Lender shall notify the Agent of such event and the Agent shall notify if applicable, the Borrower will be deemed to have converted any such request into a request for a borrowing of such eventor conversion to ABR Loans in the amount specified therein and (B) any outstanding affected SOFR Loans, and if applicable, will be deemed to have been converted into ABR Loans at the right end of the Borrower to select Eurodollar Rate Loans for applicable Interest Period. Upon any subsequent Interest Period or in connection with any subsequent conversion of any Loan 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 Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any amount due additional amounts required pursuant to SECTION 3.10.
(b) If Section 3.11. During a Benchmark Unavailability Period with respect to any Benchmark or at any time that a tenor for any then-current Benchmark is not an Available Tenor, the Agent shallcomponent of ABR based upon the then-current Benchmark that is the subject of such Benchmark Unavailability Period or such tenor for such Benchmark, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continuedapplicable, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders be used in any determination of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate LoanBase Rate.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Boston Scientific Corp)
Changed Circumstances. (ai) 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 assertsIf, after the date hereof, the introduction of, or any change in, any applicable 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 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 (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 reserve (including, without limitation, any reserve imposed by the Federal Reserve Board), special deposit or similar requirement against assets of the Bank, deposits with or for the account of Bank, or credit extended by Bank, or shall impose on Bank or the foreign exchange and interbank markets any other condition affecting the Note; and the result of any of the foregoing is to increase the cost to Bank of maintaining any LIBOR-Based Rate or; to reduce the amount of any sum received or receivable by Bank under this Note in respect of interest at the LIBOR-Based Rate; then the 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 Bank such additional amount or amounts as will compensate Bank for such increased cost or reduction. Bank will promptly notify Borrower of any event of which it has knowledge which will entitle Bank to compensation pursuant to this Subparagraph 2.4 (j); provided, however, that Bank shall incur no liability whatsoever to Borrower in 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 shall be prima evidence thereof.
(ii) If, at any time, Bank shall determine in good faith that, by reason of circumstances affecting the foreign exchange and interbank markets generally, deposits 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 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 unlawfulnot 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 expenses arising from such conversion, including those set forth in Section 2.4(i) hereof.
(iii) If, after the date hereof, the introduction of, or any Lender change in, any applicable 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 perform honor its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar any LIBOR-Based Rate Loans hereunderor make an Optional Currency Advance, Bank shall promptly give notice thereof to Borrower. Thereafter, until Bank notifies Borrower that such Lender shall notify circumstances no longer exists, (A) the Agent obligations of such event and Bank to make available the Agent shall notify the Borrower of such event, LIBOR-Based Rate or Optional Currency Advances and the right of the Borrower to select Eurodollar convert any rate to a LIBOR-Based Rate Loans for any subsequent or receive Optional Currency Advances shall be suspended, and (B) if Bank may not lawfully continue to maintain a LIBOR-Based Rate or extend Optional Currency Advances, as the case may be, to the end of the then current Interest Period or applicable thereto, the applicable LIBOR-Based Rate in connection with any subsequent conversion the case of any a Dollar Advance shall immediately be converted to a Prime-Based Rate for the remainder of such Interest Period, and the Loan shall shall, subject to the following sentence hereof, be suspended until immediately due in the Agent shall notify event of an Optional Currency Advance. Notwithstanding the Borrower foregoing, in the event that the circumstances causing such suspension no longer existBank 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 forthwith prepay in full be responsible for paying all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of costs or expenses arising from such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10including those set forth in Section 2.4(i) hereof.
(biv) If the Agent shall, at least one Business Day before the date The provisions of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan Sections 2.4 (each such requested Revolving Credit Loan made i) and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost (j) shall similarly inure to the Lenders of making benefit to any party to whom the Lender sells an interest, or funding such Pending Loan participates on interest herein, as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower authorized pursuant to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate LoanSection 8.9 hereof.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) If on any date on which the introduction Applicable LIBOR Rate would otherwise be set the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market, or (B) compliance by any change Lender in or in the interpretation of (in each case, after the date hereof) good faith with any applicable law or regulation makes it unlawfulgovernmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority assertscharged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, after as applicable for deposits in which they regularly participate; then, and in such event, the date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Administrative Agent shall forthwith so notify the Borrower of such event, and thereof. Until the right of Administrative Agent notifies the Borrower to select Eurodollar Rate 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 Borrower Borrowers that the circumstances causing giving rise to such suspension notice no longer existapply, the obligation of the Lenders and the Borrower Administrative Agent to allow election by the Borrowers of a LIBOR Pricing Option shall forthwith prepay be suspended. If at the time the Administrative Agent so notifies the Borrowers, the Borrowers 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 date as shall be specified in full such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all Eurodollar LIBOR Rate Loans then outstanding shall be terminated and the Borrowers, jointly and severally, shall pay all interest accrued thereon through the date of due on such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar LIBOR Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable and any amounts required to such Eurodollar Rate Loan, the Borrower shall also pay any amount due be paid pursuant to SECTION 3.10Section 4.6.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.
Appears in 1 contract
Changed Circumstances. (a) If The Agent may give the introduction Borrower notice of the occurrence of the following:
(i) The Agent shall 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, that adequate and fair means do not exist for ascertaining such rate.
(ii) The Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(A) The continuation 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any 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 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 (whether or not having the force of law).
(B) The indices on which the interest rates for Eurodollar Loans are based shall be suspended no longer represent the effective cost to the Agent or any Lender for U.S. dollar deposits in the interbank market for deposits in which it regularly participates.
(b) In the event that the Agent gives the Borrower notice of an occurrence described in Section 2-21(a), then, until the Agent shall notify notifies the Borrower that the circumstances causing giving rise to such suspension notice no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day apply:
(i) The obligation of the Interest Period applicable Agent and of each Lender to make Eurodollar Loans of the type affected by such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant changed circumstances or to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of permit the Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended.
(ii) Any notice which the Borrower had given the Agent with respect to any Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection the time for action with any subsequent conversion or continuation of any Loan respect to which has not occurred prior to the Agent's having given notice pursuant to Section 2-21(a), shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested deemed to be made, continued or converted shall be made or continued as or converted into a Prime Rate request for a Base Margin Loan.
(c) Notwithstanding the foregoing, each Lender agrees to 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 if the making of such designation would allow the Lender or its lending office to continue to make Eurodollar Loans.
Appears in 1 contract
Changed Circumstances. (a) In the event that the Agent or any Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(i) adequate and fair means do not exist for ascertaining the LIBOR Rate, or
(ii) the making of a LIBOR Loan or the continuation of or conversion of any Loan to a LIBOR Loan has been made unlawful due to (1) the occurrence of a contingency that materially and adversely affects the interbank foreign currency deposits market or (2) compliance by the Agent or 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 (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 introduction 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 (which shall not be earlier than the date such notice is given) the 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, 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) imposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, the Agent or any Lender (other than such requirements as are already included in the interpretation determination of the LIBOR Rate), or
(in each case, after ii) imposes upon the date hereof) any law or regulation makes it unlawful, Agent or any Governmental Authority assertsLender any other condition with respect to its or the Borrowers' performance under this Agreement, after and the date hereofresult of any of the foregoing is to increase the cost to any Lender, that it is unlawful, for reduce the income receivable by any Lender or impose any expense upon any Lender with respect to perform its obligations hereunder to make Eurodollar Rate the Loans or to fund or maintain Eurodollar Rate Loans hereunderthe commitments of the Lenders hereunder in an amount which such Lender in good faith determines is material, such Lender shall notify the Agent Borrowers thereof as promptly as is reasonably practical. The Borrowers agree to pay to such Lender the amount of such event 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 Lender of a statement in the Agent shall notify the Borrower of such eventamount and setting forth a calculation thereof, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan which statement shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, deemed true and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion correct absent manifest error."
8. A new Section 2.9 is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost added to the Lenders of making or funding such Pending Loan Agreement to read as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.follows:
Appears in 1 contract
Changed Circumstances. (a) If prior to the introduction first day of any Interest Period:
(i) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the 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 such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Loans during such 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 change in 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 be continued as ABR Loans, (y) any outstanding Eurodollar Loans shall be converted, on the first day of such Interest Period, to ABR Loans and (z) 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 further Eurodollar Loans or Multicurrency Loans shall be made or continued as such, nor shall the Borrower have the right to convert ABR Loans to Eurodollar Loans.
(i) Notwithstanding anything to the contrary herein or in any other Loan Document, upon the interpretation 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 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 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 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 pursuant to this Section, 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, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, after as expressly required pursuant to this Section.
(iv) Upon the date hereofBorrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to 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 law such request into a request for a borrowing of or regulation makes it unlawfulconversion to ABR Loans and (ii) in the case of a request for borrowing of, conversion to or continuation of Loans denominated in any currency other than Dollars, such request shall be ineffective. During any Benchmark Unavailability Period with respect to any Benchmark, the component of Base Rate or any Governmental Authority asserts, after other Benchmark that is based upon the date hereof, Benchmark that it is unlawful, for any Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent subject of such event and the Agent shall notify the Borrower Benchmark Unavailability Period will not be used in any determination of Base Rate or such eventother Benchmark. Furthermore, and the right of the Borrower to select Eurodollar Rate Loans for if any subsequent Interest Period or Eurocurrency Loan in connection with any subsequent conversion of any Loan 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 Eurodollar Rate Loans then Available Foreign Currency is outstanding and shall pay all interest accrued thereon through on the date of such prepayment or conversion, unless the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Eurocurrency Loan, within three Business Days after then (i) if such notice from the AgentEurocurrency Loan is denominated in Dollars, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not on the last day of the Interest Period applicable to such Eurodollar Rate Loan, Loan (or the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one next succeeding Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into if such day is not a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOANBusiness Day), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until converted by the Administrative Agent to, and shall notify constitute, an ABR Loan denominated in Dollars on such day or (ii) if such Eurocurrency Loan is denominated in any Available Foreign Currency, then such Loan shall, 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), at the Borrower’s election prior to such day: (A) be prepaid by the Borrower that on such day or (B) be converted by the circumstances causing such suspension no longer existAdministrative Agent to, and each Pending (subject to the remainder of this subclause (B)) shall constitute, an ABR Loan denominated in Dollars (in an amount equal to the Dollar Equivalent of such Available Foreign Currency) on such day (it being understood and each agreed that if the Borrower does not so prepay such Loan on such day by 12:00 noon, local time, the Administrative Agent is authorized to effect such conversion of such 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 requested 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 be madethe Available Foreign Currency Equivalent of such Available Foreign Currency) on the day of such implementation, continued or converted shall be made or continued as or converted into a Prime Rate Loangiving effect to such Benchmark Replacement in respect of such Available Foreign Currency.
Appears in 1 contract
Changed Circumstances. Notwithstanding any other provision of this Agreement, in the event that:
(a) If on any date on which 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 Eurodollar LIBOR Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and otherwise would be set the Agent shall notify have determined in good faith (which determination shall be final and conclusive, unless not made in good faith) that adequate and fair means do not exist for ascertaining the Borrower LIBOR Rate, or
(b) at any time the Agent or any Lender shall have determined in good faith (which determination shall be final and conclusive, unless not made in good faith, and, if made by any Lender, shall have been communicated to the Agent in writing) that:
(i) the making or continuation of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended until 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 Agent or such 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 (whether or not having the force of Law); or
(ii) the LIBOR Rate no longer shall represent 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 Borrower Agent notifies TIMET that the circumstances causing giving rise to such suspension notice no longer existapply, and the Borrower obligation of the Lenders to allow selection by TIMET of the type of Loan affected by the contingencies described in this Section 5.24 of this Agreement shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through be suspended. If at the date of such prepayment or conversion, unless the Borrower, within three Business Days after such time TIMET receives a notice from the AgentAgent pursuant to the preceding sentence TIMET previously has given the Agent a Notice of Borrowing or Conversion with respect to one or more affected Loans, requests the conversion of all Eurodollar Rate but such Loans then outstanding into Prime have not yet been made, such notification shall be deemed to be a request for 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 such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.
Appears in 1 contract
Changed Circumstances. If, on or before the date off acceptance of any Draft, the Lender shall have determined (which determination shall be final, conclusive and binding on the Borrower) that (a) If it is impermissible for the Lender to accept any Draft due to the introduction of any Requirement of Law or any change in or in the interpretation of (in each case, after the date hereof) any law or regulation makes administration thereof has made it unlawful, or that any central bank or other Governmental Authority asserts, after the date hereof, has asserted that it is unlawful, for any the Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund extend any Acceptance, or maintain Eurodollar Rate Loans hereunderany order, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such eventjudgment, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion decree of any Loan shall be suspended until Governmental Authority or arbitrator purports by its terms to enjoin or restrain the Agent shall notify the Borrower that the circumstances causing such suspension no longer existLender from making or extending any Acceptance, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If acceptances in amounts or for durations corresponding to the Agent shallproposed Acceptance(s) are not being readily traded in the applicable market, at least one Business Day before or (c) by reason of changes affecting the date of any requested Revolving Credit Loan or applicable market, the effective date of any conversion or continuation of an existing Loan discount rate to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower in effect for that the Eurodollar Rate period will not adequately and fairly reflect the cost to the Lenders Lender of making accepting or funding such Pending Loan as a Eurodollar Rate Loan or that discounting the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standingDraft, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan Lender shall be suspended until under no obligation to accept the Agent requested Draft notwithstanding anything to the contrary in this Article III. The Lender shall notify the Borrower in the event the Lender makes such a determination; PROVIDED, HOWEVER, that the circumstances causing failure to give such suspension no longer existnotice shall not affect the validity of that determination or the rejection of any Draft submitted for acceptance. No determination made under this subsection, however, shall in and each Pending Loan of itself reduce the unused portion of the Aggregate Commitment or limit the Borrower's ability to request other Extensions of Credit hereunder in accordance with the terms and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loanprovisions of this Agreement.
Appears in 1 contract
Sources: Revolving Credit Loan Agreement (Marshall Industries)
Changed Circumstances. In the event that:
(ai) If on any date on which 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 Eurodollar LIBOR Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and would otherwise be set the Agent shall have reasonably determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Base, or
(ii) at any time the Agent shall have reasonably determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of or conversion of any Loan to a LIBOR Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the interbank market or (2) compliance by the 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 interpretation or administration thereof or with any request or directive of any such governmental authority, whether or not having the force of law (in any such case, a "Legal Impediment"); or
(B) the LIBOR Rate shall no longer represent the effective cost to the Agent or any 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 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 Borrower 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 such the applicable Interest Period or (iii) the occurrence of the applicable event, and the right of Interest Rate shall become the Borrower to select Eurodollar Prime Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan and shall be suspended remain the Prime Rate until the Agent shall notify determines and so notifies the Borrower Company that the circumstances causing giving rise to such suspension notice no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If apply. Until the Agent shall, at least one Business Day before notifies the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower Company that the circumstances causing giving rise to such suspension notice no longer existapply, and each Pending the obligation of the Agent to allow selection by the Company of a LIBOR Loan and each (during the occurrence of such subsequent Loan requested 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 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 made, continued void and the Company may only borrow or converted shall be made or continued as or converted into 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 Company shall pay all such Breakage Costs to the Agent promptly upon its demand therefor for its account and/or the account of any such Bank.
Appears in 1 contract
Changed Circumstances. In the event that:
(ai) If on any date on which the introduction LIBOR Rate would otherwise be set the Bank shall have reasonably determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Base, or
(ii) conclusive) that:
(A) the making or continuation of or conversion of any Loan to a LIBOR Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the interbank market or (2) compliance by the 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 interpretation or administration thereof or with any request or directive of any such governmental authority, whether or not having the force of law (in or any such case, a "Legal Impediment"); or
(B) the LIBOR Rate shall no longer represent the effective cost to the Bank for United States dollar deposits in the interpretation 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 (in each case, after 1) day prior to (i) the date hereofthat the LIBOR Rate is to be set, (ii) any law the commencement date of the applicable Interest Period or regulation makes it unlawful, or any Governmental Authority asserts, after (iii) the date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify occurrence of the Agent of such event and the Agent shall notify the Borrower of such applicable event, and the right of Interest Rate shall become the Borrower to select Eurodollar Prime Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan and shall be suspended remain the Prime Rate until the Agent shall notify Bank determines and so notifies the Borrower Company that the circumstances causing giving rise to such suspension notice no longer exist, and apply. Until the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through Bank notifies the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower Company that the circumstances causing giving rise to such suspension notice no longer existapply, and each Pending the obligation of the Bank to allow selection by the Company of a LIBOR Loan and each (during the occurrence of such subsequent Loan requested circumstances, referred to as "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 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 made, continued void and the Company may only borrow or converted shall be made or continued as or converted into convert to a Prime Rate Loan. If as a result of a Legal Impediment, the Bank shall incur Breakage Costs in converting from a LIBOR Loan, then the Company shall pay all such Breakage Costs to the Bank promptly upon its demand therefor for its account.
Appears in 1 contract
Changed Circumstances. (a) If The Agent may give the introduction Lead Borrower notice that:
(i) The Agent shall have determined in good faith (which determination shall be final and conclusive) on any day on which the Eurodollar rate would otherwise be set, that by reason of or any change in or in the interpretation of (in each case, changes arising after the date hereofof this Agreement affecting the principal market in Eurodollars in which Fleet National Bank participates, adequate and fair means do not exist for ascertaining such rate; or
(ii) any law or regulation makes it unlawfulThe Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(A) The continuation of, or any Governmental Authority asserts, after the date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Revolving Credit Loan shall be suspended until 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 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 (whether or not having the force of law); or
(B) The indices on which the interest rates for Eurodollar Loans are based shall notify the Borrower that the circumstances causing such suspension no longer exist, and represent the Borrower shall forthwith prepay effective cost to the Agent or any Tranche A Lender for U.S. dollar deposits in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10interbank market for deposits in which it regularly participates.
(b) If In the event that the Agent shall, at least one Business Day before gives the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation Lead Borrower notice of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOANoccurrence described in Section 2.20(a), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standingthen, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify notifies the Lead Borrower that the circumstances causing giving rise to such suspension notice no longer existapply:
(i) The obligation of the Agent and 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 be suspended.
(ii) Any notice which the Lead Borrower shall have given the Agent with respect to any Eurodollar Loan, and each Pending Loan and each the time for action with respect to which has not occurred prior to the Agent's having given notice pursuant to Section 2.20(a), shall 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 event described in Section 2.20(a)(ii), shall)
(A) cancel the relevant borrowing or conversion notice on the same date the Lead Borrower was notified of such subsequent Loan requested event; and
(B) prepay or cause to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loanprepaid any then affected Eurodollar Loans.
Appears in 1 contract
Changed Circumstances. (a) Circumstances Affecting LIBOR Rate or LIBOR Market Index Rate Availability. If prior to the introduction first day of or any change in or in the interpretation of Interest Period, (in each case, after the date hereofi) 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify have determined in good faith (which determination shall be conclusive and binding upon the Borrower absent manifest error) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the 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 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 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 eventInterest Period shall be made as Base Rate Loans, and (ii) any Revolving Loans that were to have been converted on the right first day of the Borrower such Interest Period to select Eurodollar or continued as LIBOR Loans shall be converted to or continued as Base Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any and (iii) each outstanding LIBOR Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer existconverted, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not on the last day of the then-current Interest Period applicable thereof, to Base Rate Loans. Until such Eurodollar Rate Loannotice has been withdrawn by the Agent, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted further LIBOR Loans shall be made 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 (i) the Swingline Lender shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that, by reason of circumstances affecting the relevant market, reasonable and adequate means do not exist for ascertaining the LIBOR Market Index Rate, or converted into (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 of funding LIBOR Market Index Swingline Loans, the Swingline Lender shall forthwith give telephone notice of such 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 Prime Rate Loansimilar interest rate based on historical data.
Appears in 1 contract
Changed Circumstances. (a) If prior to the introduction first day of any Interest Period:
(i) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining Adjusted Term SOFR or the Eurocurrency Rate for any change in 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 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 making or maintaining their affected Loans during such 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 interpretation affected Currency requested to be made on the first day of such Interest Period shall be made as ABR Loans (in each casethe case of Multicurrency Loans, after in an amount equal to 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent Dollar Equivalent of such event and requested Multicurrency Loans), provided, that, notwithstanding the Agent shall notify 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 event, and the right of the Borrower to select Eurodollar Rate 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 Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate 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 then outstanding and shall pay all interest accrued thereon through that were to have been converted on the date first day of such prepayment or conversionInterest Period to EurodollarSOFR Loans shall be continued as ABR Loans, unless (y) if the Borroweraffected Currency is Dollars, within three Business Days after 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 from has been withdrawn by the Administrative Agent, requests no further EurodollarSOFR Loans or Multicurrency Loans in the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted 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 converted into in any other Loan Document, upon the occurrence of a Prime Rate LoanBenchmark 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 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) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (2) the regulatory supervisor for the administrator of such Benchmar▇ ▇▇▇ ▇▇▇vided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor
Appears in 1 contract
Changed Circumstances. In the event that:
(a) If on any date on which 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 Eurodollar Applicable LIBOR Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the 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 LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank 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 (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall forthwith so notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended until thereof. Until the Agent shall notify notifies the Borrower that the circumstances causing giving rise to such suspension notice no longer existapply, the obligation of the Lenders and the Agent to allow election by the Borrower of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the Borrower, the 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 effect. Upon such date as shall be specified in such notice given by the Agent (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of due on such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar LIBOR Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable and any amounts required to such Eurodollar Rate Loan, the Borrower shall also pay any amount due be paid pursuant to SECTION 3.10Section 4.6.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.
Appears in 1 contract
Sources: Credit Agreement (Saucony Inc)
Changed Circumstances. In the event that: ---------------------
(a) If on any day on which the introduction rate for a Libor Rate Loan would otherwise be set, the Bank shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining such rate; or
(b) at any time the Bank shall have determined in good faith (which determination shall be final and conclusive) 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 applicable market or (B) compliance by the Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change in thereof by any governmental authority charged with the interpretation or admin- istration thereof or with any request or directive of any such governmental authority (whether or not having the force of law); or
(ii) the indices on which the interest rates for Libor Rate Loans shall no longer represent the effective cost to the Bank for U.S. dollar deposits in the interpretation of (interbank market for deposits in each casewhich it regularly participates; then, after and in any such event, 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender Bank shall notify the Agent of such event and the Agent shall forthwith so notify the Borrower of such event, and thereof. Until the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended until the Agent shall notify Bank notifies the Borrower that the circumstances causing giving rise to such suspension notice no longer existapply, the obligation of the Bank to make Libor Rate Loans of the type affected by such changed circumstances or to permit the 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 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 shall forthwith prepay in full all Eurodollar may borrow under interest rate options otherwise available hereunder, by giving a substitute Notice of Borrowing or a Renewal/Conversion Notice. Upon the expiration of the Interest Period for any Libor Rate Loans then Loan which is outstanding and shall pay all interest accrued thereon through on the date of such prepayment or conversionnotification, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date amount of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Libor Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, shall thereafter constitute a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Floating Rate Loan.
Appears in 1 contract
Sources: Commercial Promissory Note and Loan Agreement (D M Management Co)
Changed Circumstances. (ai) If The Lender may give the introduction Borrower notice of the occurrence of the following:
(A) The Lender shall 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, that adequate and fair means do not exist for ascertaining such rate.
(B) The Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(1) The continuation 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any 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 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 (whether or not having the force of law).
(2) The indices on which the interest rates for Eurodollar Loans are based shall be suspended 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 Agent shall notify Lender notifies the Borrower that the circumstances causing giving rise to such suspension notice no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day apply:
(A) The obligation of the Interest Period applicable Lender to make Eurodollar Loans of the type affected by such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant changed circumstances or to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of permit the Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended.
(B) Any notice which the Borrower had given the Lender with respect to any Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection the time for action with any subsequent conversion or continuation of any Loan respect to which has not occurred prior to the Lender’s having given notice pursuant to Section 2-21(a), shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested deemed to be made, continued or converted shall be made or continued as or converted into a Prime request for a Base Rate Loan.
(iii) Notwithstanding the foregoing, the Lender agrees to 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 if the making of such designation would allow the Lender or its lending office to continue to make Eurodollar Loans.
Appears in 1 contract
Changed Circumstances. (a) In the event that the Bank shall have determined in good faith (which determination shall be final and conclusive, so long as the Bank shall provide reasonable evidence of the basis of such determination) that:
(i) adequate and fair means do not exist for ascertaining the Interbank Offered Rate on any date on which the Adjusted Eurodollar Rate would otherwise be set, or
(ii) the making of a Eurodollar Loan or the continuation of or conversion of any Loan to a Eurodollar Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the interbank Eurodollar market or (2) compliance by the 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 interpretation or administration thereof or with any request or directive of any such governmental authority (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 introduction 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 (which shall not be earlier than the date such notice is given) the Borrower shall forthwith prepay all outstanding Eurodollar Loans, 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 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, the Bank (other than such requirements as are already included in the interpretation determination of the Adjusted Eurodollar Rate), or
(in each caseiii) imposes upon the Bank any other condition with respect to its or the Borrower's performance under this Agreement, 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent result of any of the foregoing is to increase the cost to the Bank, reduce the income receivable by the Bank or impose any expense upon the Bank with respect to any Loans, the Bank shall notify the Borrower thereof. The Borrower agrees to pay to the Bank the amount of such eventincrease in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by the right Bank of a statement in the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan amount and setting forth the Bank's calculation thereof, which statement shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, deemed true and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10correct absent manifest error.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.
Appears in 1 contract
Sources: Revolving Credit Agreement (First Empire State Corp)
Changed Circumstances. (a) In the event that the Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(i) adequate and fair means do not exist for ascertaining the 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 a Eurodollar Loan or Federal Funds Rate Loan or the continuation of or conversion of any Loan to a Eurodollar Loan or Federal Funds Rate Loan has been made impracticable (as reasonably determined by the Bank) or unlawful by (1) the occurrence of a contingency that materially and adversely affects the interbank Eurodollar market or Federal funds market, as applicable, or (2) compliance by the 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 interpretation or administration thereof or with any request or directive of any such governmental authority (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 introduction 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 (which shall not be earlier than the date such notice is given) the Company shall forthwith prepay all outstanding affected Loans, 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 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, the Bank (other than such requirements as are already included in the interpretation determination of (in each case, after the date hereof) any law or regulation makes it unlawfulAdjusted Eurodollar Rate), or (iii) imposes upon the Bank any Governmental Authority asserts, after other condition with respect to its or the date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such eventCompany's performance under this Agreement, and the right result of any of the Borrower foregoing is to select Eurodollar Rate 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 Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect increase the cost to the Lenders of making Bank, reduce the income receivable by the Bank or funding such Pending Loan as a Eurodollar Rate Loan or that impose any expense upon the Interbank Offered Rate is not determinable from Bank with respect to any interest rate reporting service of recognized standingLoans, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent Bank shall notify the Borrower that Company thereof. The Company agrees to pay to the circumstances causing Bank the amount of such suspension no longer existincrease in cost, reduction in income or additional expense as and each Pending Loan when such cost, reduction or expense is incurred or determined, upon presentation by the Bank of a statement in the amount and each such subsequent Loan requested to be madesetting forth the Bank's calculation thereof, continued or converted which statement shall be made or continued as or converted into a Prime Rate Loandeemed true and correct absent manifest error.
Appears in 1 contract
Sources: Revolving Credit Agreement (Essex County Gas Company)
Changed Circumstances. In the event that:
(a) If on any date on which 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 Eurodollar Applicable LIBOR Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and would otherwise be set the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or have determined in connection with any subsequent conversion of any Loan good faith (which good faith determination shall be suspended until final and conclusive) that adequate and fair means do not exist for ascertaining the Agent shall notify the Borrower that the circumstances causing such suspension no longer existLIBOR Rate, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loansas applicable; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.or
(b) If at any time the Agent shallshall have determined in good faith (which good faith determination shall be final and conclusive) that
(i) the implementation of LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market, at least one Business Day before 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 date interpretation or administration thereof or with any request or directive of any requested Revolving Credit Loan such governmental authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding obtaining the relevant currency in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standingevent, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall forthwith so notify the Borrower Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances causing giving rise to such suspension notice no longer existapply, the obligation of the Lenders and each Pending Loan and each the Agent to allow election by the Borrowers 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 subsequent Loan requested Pricing Notice shall automatically be deemed to be made, continued withdrawn and be of no force or converted effect. Upon such date as shall be made or continued as or converted into a Prime specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate LoanLoans shall be terminated and the Borrowers shall pay all interest due on such LIBOR Rate Loans and any amounts required to be paid pursuant to Section 4.3 (except in the case of the termination of LIBOR Loans pursuant to Section 2.16(b)(ii) in which case such LIBOR Loans shall continue until the end of the applicable Interest Period).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Gerber Scientific Inc)
Changed Circumstances. In the event that:
(a) If on any date on which the introduction of Applicable Eurodollar Rate would otherwise be set, the Agent or any Lender shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the 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 the Eurodollar Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change in thereof by any governmental authority charged with the interpretation or administration thereof or with any request or directive of any such governmental authority (whether or not having the force of law); or
(ii) the Eurodollar Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the interpretation of (London interbank market, as applicable for deposits in each casewhich they regularly participate; then, after and in such event, 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender 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, the obligation of such event the Lenders and the Agent shall notify to allow election by the Borrower Borrowers of such event, and the right of the Borrower to select a Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan Pricing Option shall be suspended until 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 Eurodollar Pricing Notice shall notify 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 Borrower that date such notice is given), the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full Eurodollar Pricing Option with respect to all Eurodollar Rate Loans then outstanding shall be terminated and the Borrowers, jointly and severally, shall pay all interest accrued thereon through the date of due on such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable and any amounts required to such Eurodollar Rate Loan, the Borrower shall also pay any amount due be paid pursuant to SECTION 3.10Section 4.3.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.
Appears in 1 contract
Sources: Credit Agreement (Tweeter Home Entertainment Group Inc)
Changed Circumstances. In the event that:
(a) If on any date on which the introduction Applicable LIBOR Rate would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the 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 LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market, or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change in thereof by any governmental authority charged with the interpretation or administration thereof or with any request or directive of any such governmental authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the interpretation of (London interbank market, as applicable for deposits in each casewhich they regularly participate; then, after and in such event, 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender 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, the obligation of such event the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option shall notify be suspended. If at the Borrower 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 LIBOR Pricing Option has been made unlawful by any of the circumstances described in Section 2.14(b)(i), then upon such eventdate as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated and the right of the Borrower to select Eurodollar Rate 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 Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and Borrowers shall pay all interest accrued thereon through the date of due on such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar LIBOR Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable and any amounts required to such Eurodollar Rate Loan, the Borrower shall also pay any amount due be paid pursuant to SECTION 3.10Section 4.3.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.
Appears in 1 contract
Changed Circumstances. (a) If In the introduction event that:
(i) on any date on which the Adjusted Eurodollar Rate would otherwise be set, the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the Interbank Offered Rate, or
(ii) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of or conversion of any Loan to a Eurodollar Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the Interbank Eurodollar market or (2) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change in thereof by any governmental authority charged with the interpretation or administration thereof or with any request or directive of any such governmental authority (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 interpretation 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 (in each case, after 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 purs to Section 2.2 hereof.
(b) In case any law law, regulation, treaty or regulation makes it unlawful, official directive or the interpretation or application thereof by any Governmental Authority asserts, after court or by any governmental authority charged with the date hereof, that it is unlawful, for 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 perform 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, any Lender (other than such requirements as are already included in the determination of the Adjusted Eurodollar Rate), or
(iii) imposes upon any Lender any other condition with respect to its obligations hereunder performance under this Agreement, and the result of any of the foregoing is to make increase the cost to such Lender, reduce the income receivable by such Lender or impose any expense upon such Lender with respect to any outstanding Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunderLoans, such Lender shall notify the Agent Company thereof. The Borrowers, jointly and severally, agrees to pay to such Lender the amount of such event 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 Lender of a statement in the Agent shall notify the Borrower of amount and setting forth such eventLender's calculation thereof, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan which statement shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, deemed true and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10correct absent manifest error.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.
Appears in 1 contract
Sources: Credit Agreement (Brookstone Inc)
Changed Circumstances. (ai) 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 assertsIf, after the date hereof, the introduction of, or any change in, any applicable 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 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 (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 reserve (including, without limitation, any reserve imposed by the Federal Reserve Board), special deposit or similar requirement against assets of the Bank, deposits with or for the account of the Bank, or credit extended by Bank, or shall impose on Bank or the foreign exchange and interbank markets any other condition affecting the Note; and the result of any of the foregoing is to increase the cost to Bank of maintaining any LIBOR-Based Rate or; to reduce the amount of any sum received or receivable by Bank under the Note in respect of interest at the LIBOR-Based Rate; then the 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 Bank such additional amount or amounts as will compensate Bank for such increased cost or reduction. Bank will promptly notify Borrower of any event of which it has knowledge which will entitle Bank to compensation pursuant to this Subparagraph 2.4 (i); provided, however, that Bank shall incur no liability whatsoever to Borrower in 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 shall be prima facie evidence thereof.
(ii) If, at any time, Bank shall determine in good faith that, by reason of circumstances affecting the foreign exchange and interbank markets generally, deposits in 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 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 unlawfulnot 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 reasonably request to make the Loan Documents consistent with the Bank's standard terms for LIBOR-Based Loans payable in Dollars.
(iii) If, after the date hereof, the introduction of, or any Lender change in, any applicable 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 perform honor its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar any LIBOR-Based Rate Loans hereunderor make an Optional Currency Advance, Bank shall promptly give notice thereof to Borrower. Thereafter, until Bank notifies Borrower that such Lender shall notify circumstances no longer exists, (A) the Agent obligations of such event and Bank to make available the Agent shall notify the Borrower of such event, LIBOR-Based Rate or Optional Currency Advances and the right of the Borrower to select Eurodollar convert any rate to a LIBOR-Based Rate Loans for any subsequent or receive Optional Currency Advances shall be suspended, and (B) if Bank may not lawfully continue to maintain a LIBOR-Based Rate or extend Optional Currency Advances, as the case may be, to the end of the then current Interest Period or applicable thereto, the Loan shall, subject to the following sentence hereof, be immediately due in connection with any subsequent conversion the event of any Loan shall be suspended until an Optional Currency Advance. Notwithstanding the Agent shall notify foregoing, in the Borrower event that the circumstances causing such suspension no longer existBank 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 forthwith prepay in full be responsible for paying all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of costs or expenses arising from such prepayment or conversion, unless including those set forth in Section 2.4(h) hereof. In the Borrower, within three Business Days after such notice from event the Agent, requests Bank is able to convert the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable Advance to such Eurodollar Rate Loanan Advance payable in Dollars, the Borrower shall also pay any amount due pursuant will sign such amendments to SECTION 3.10the Loan Documents as the Bank may reasonably request to make the Loan Documents consistent with the Bank's standard terms for LIBOR-Based Loans payable in Dollars.
(biv) If the Agent shall, at least one Business Day before the date The provisions of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan Sections 2.4 (each such requested Revolving Credit Loan made h) and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost (i) shall similarly inure to the Lenders of making benefit to any party to whom the Lender sells an interest, or funding such Pending Loan participates on interest herein, as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower authorized pursuant to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate LoanSection 8.9 hereof.
Appears in 1 contract
Changed Circumstances. (a) CIRCUMSTANCES AFFECTING LIBOR RATE OR LIBOR MARKET INDEX RATE AVAILABILITY. If prior to the introduction first day of any Interest Period, (i) the Agent shall have determined in good faith (which determination shall be conclusive and binding upon the Borrower absent manifest error) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the 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 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 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 Agent, no further LIBOR Loans shall be made 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 (i) the Swingline Lender shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that, by reason of circumstances affecting the relevant market, reasonable and adequate means do not exist for ascertaining the LIBOR Market Index Rate, or (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 of funding LIBOR Market Index Swingline Loans, the Swingline Lender shall forthwith give telephone notice of such 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.
(b) 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 of (in each case, or application thereof occurring after the date hereof) any law or regulation makes Closing Date shall make it unlawful, or any Governmental Authority asserts, after the date hereof, that it is unlawful, unlawful for any Lender to perform its obligations 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 Eurodollar LIBOR Loans, continue LIBOR Loans as such and convert a Base Rate Loan to LIBOR Loans or shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to fund make or maintain Eurodollar Rate Loans hereunderLIBOR Loans, such Lender shall notify the Agent of then have a commitment only to make a Base Rate Loan when a LIBOR Loan is requested and (iii) such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate 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 Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Lender's Revolving Loans then outstanding and as LIBOR Loans, if any, shall pay all interest accrued thereon through be converted automatically to Base Rate Loans on the date respective last days of the then current Interest Periods with respect to such prepayment Revolving Loans or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the earlier period as required by law. If any such conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion a LIBOR Loan occurs on a day which is not the last day of the then current Interest Period applicable to such Eurodollar Rate Loanwith respect thereto, the Borrower shall also pay any amount due to such Lender such amounts, if any, as may be required pursuant to SECTION 3.10Section 3.5(c).
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.
Appears in 1 contract
Sources: Syndication Amendment and Assignment (Sterile Recoveries Inc)
Changed Circumstances. (a) If The Lender may advise the introduction Lead Borrower that the Lender has made the good faith determination (which determination shall be final and conclusive) of any of the following:
(i) Adequate and fair means do not exist for ascertaining the rate for LIBOR Loans.
(ii) The continuation 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent 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 be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and represent the Borrower shall forthwith prepay effective cost to the Lender for U.S. dollar deposits in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10London interbank market for deposits in which it regularly participates.
(b) If In the Agent shall, at least one Business Day before event that the date of any requested Revolving Credit Loan or Lender advises the effective date of any conversion or continuation Lead Borrower of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan occurrence described in Section (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOANa), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standingthen, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify Lender notifies the Lead Borrower that the circumstances causing giving rise to such suspension notice no longer exist, and each Pending Loan and each 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 subsequent Loan requested changed circumstances or to be made, continued or converted permit the Lead Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be made or continued as or converted into a Prime Rate suspended.
(ii) Any notice which the Lead Borrower had given the Lender with respect to any LIBOR Loan, the time for action with respect to which has not occurred prior to the Lender's having given notice pursuant to Section (a), shall be deemed at the option of the Lender to not having been given.
Appears in 1 contract
Changed Circumstances. In the event that:
(ai) If on any date on which the introduction Adjusted Eurodollar Rate or the Canadian Eurodollar Rate would otherwise be set, the Agent or the Canadian Bank, as applicable, shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the 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 Loan to, a Eurodollar Loan has been made impracticable or unlawful by (l) the occurrence of a contingency that materially and adversely affects the Interbank Eurodollar Market or (2) compliance by the Agent or any Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change in thereof by any governmental authority charged with the interpretation or administration thereof or with any request or directive of any such governmental authority (whether or not having the force of law); or
(B) the Adjusted Eurodollar Rate or Canadian Eurodollar Rate shall no longer represent the effective cost to any U.S. Bank for United States dollar deposits, or to the Canadian Bank for Canadian dollar deposits, as applicable, in the interpretation of (Interbank Eurodollar Market in each casewhich it regularly participates; then, after the date hereof) and in 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended until the Agent or the Canadian Bank, as applicable, shall forthwith so notify the U.S. or Canadian Borrower thereof. Until the Agent or the Canadian Bank, as applicable, notifies such Borrower that the circumstances causing giving rise to such suspension notice no longer existapply, 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 Eurodollar Loans as may be reasonably required to reduce any liability of any Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of to such prepayment Bank under Sections 2B.7, 2B.10 or conversion2B.11, unless the Borrower, within three Business Days after so long as such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion designation is not the last day of the Interest Period applicable disadvantageous to such Eurodollar Rate Loan, the Borrower shall also pay Bank in any amount due pursuant to SECTION 3.10way.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.
Appears in 1 contract
Sources: Revolving Credit Agreement (United States Leather Inc /Wi/)
Changed Circumstances. In the event that:
(aa On any day on which the rate for a LIBOR Loan would otherwise be set, the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) If that adequate and fair means do not exist for ascertaining either such rate; or
(b At any time the introduction Administrative Agent shall have determined in good faith (which determination shall be final and conclu- sive) that:
(i the continuation of or conversion of any Revolving Credit 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 in thereof by any governmental authority charged with the 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 rates for LIBOR Loan shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the interpretation of (interbank market for deposits in each casewhich they regularly participate; then, after the date hereof) and in 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended until the Administrative Agent shall forthwith so notify the Lead Borrower thereof. Until the Administrative Agent notifies the Lead Borrower that the circumstances causing giving rise to such suspension notice no longer existapply, the obligation of the Lenders to make LIBOR 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 be suspended. If at the time the Administrative Agent 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 the Lead Borrower shall forthwith prepay in full all Eurodollar Rate may borrow Revolving Credit Loans then 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 and shall pay all interest accrued thereon through on the date of such prepayment or conversionnotification, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date amount of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any LIBOR Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into thereafter constitute a Prime Rate Base Margin Loan.
Appears in 1 contract
Sources: Loan and Security Agreement (Dynamics Research Corp)
Changed Circumstances. (a) 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 governmental authority asserts, after the date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make Eurodollar Rate LIBOR Loans or to fund or maintain Eurodollar Rate LIBOR Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower Borrowers of such event, and the right of the Borrower Borrowers to select Eurodollar Rate 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 Borrower Borrowers that the circumstances causing such suspension no longer exist, and the Borrower Borrowers shall forthwith prepay in full all Eurodollar Rate LIBOR Loans then outstanding outstanding, and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the BorrowerBorrowers, within three Business Days after such notice from the Agent, requests request the conversion of all Eurodollar Rate LIBOR Loans then outstanding into Prime Rate Loans; PROVIDEDprovided, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate LIBOR Loan, the Borrower Borrowers shall also pay any amount due pursuant to SECTION 3.10Section 4.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate LIBOR Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN"Pending Loan"), notify the Borrower Borrowers that the Eurodollar Rate LIBOR will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate LIBOR Loan or that the Interbank Offered Rate is not determinable reasonably determinable, including from any interest rate reporting service of recognized standing, then the right of the Borrower Borrowers to select Eurodollar Rate Loan LIBOR Loans for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower Borrowers that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or 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 extent 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, 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 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 governmental authority (whether or not having the force of law) subjects a Lender to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrowers 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), 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 thereof. The Borrowers agree to pay to the Agent, for the account of such Lender, as an additional fee from time to time, within thirty (30) days after demand by such Lender, such amount as such Lender certifies to be the amount that will compensate it for such reduction or tax.
(e) Before giving any notice pursuant to Section 4.15(a) or making any demand pursuant to Sections 4.15(c) or (d), each Lender agrees to use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different lending office if the making of such a designation would avoid the need for such notice or demand, or reduce the amount of such increased cost, reduction in return or tax and would not, in the judgment of such Lender, be otherwise disadvantageous to such Lender.
(f) A certificate of the Lender claiming compensation under Sections 4.15(c) or (d) shall 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 to be paid to it hereunder, and the method by which such amounts were determined. In determining such amount, a Lender may use any reasonable averaging and attribution methods.
Appears in 1 contract
Sources: Loan and Security Agreement (Safety Components International Inc)
Changed Circumstances. (a) If The Agent may give the introduction Borrower notice of or the occurrence of the following:
(i) The Agent shall have determined in good faith (which determination shall be final and conclusive) on any change in or in day on which the interpretation rate for a LIBOR Loan would otherwise be set, that, by reason of (in each case, changes arising after the date hereofof this Agreement affecting the London interbank market, adequate and fair means do not exist for ascertaining such rate on the basis provided for in the definition of LIBOR Offer Rate.
(ii) 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 LIBOR Loan has been made impracticable or /October 28, 1997/ unlawful by the occurrence of a change in law or regulation makes it unlawful, or any Governmental Authority asserts, occurring after the date hereof, of this Agreement that it is unlawful, for materially and adversely affects the applicable market or compliance by the Agent or 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 (whether or not having the force of law).
(B) The indices on which the interest rates for LIBOR Loans are determined shall no longer represent the effective cost to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such or any Lender for U.S. dollar deposits in the interbank market for deposits in which it regularly participates.
(b) In the event and that the Agent shall notify gives the Borrower notice of such eventan occurrence described in Section 2-17(a), and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended then, until the Agent shall notify notifies the Borrower that the circumstances causing giving rise to such suspension notice no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day apply:
(i) The obligation of the Interest Period applicable Agent and of each Lender to make LIBOR Loans of the type affected by such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant changed circumstances or to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of permit the Borrower to select Eurodollar Rate Loan for such Pending the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended.
(ii) Any notice which the Borrower had given the Agent with respect to any LIBOR Loan, any subsequent Revolving Credit Loan or in connection the time for action with any subsequent conversion or continuation of any Loan respect to which has not occurred prior to the Agent's having given notice pursuant to Section 2-17(a), shall be suspended until deemed at the option of the Agent shall notify the Borrower that the circumstances causing to not having been given and such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted loan shall be made or continued as as, or converted into into, as appropriate, a Prime Rate Base Margin Loan.
(iii) Subject to the provisions of Section 2-10(e), the Borrower may (and shall, with respect to the occurrence of any event described in Section 2-17(a)(ii)), cancel the relevant borrowing or conversion notice on the same date the Borrower was notified of such event, or if the LIBOR Loan is then outstanding, prepay the affected LIBOR Loan.
Appears in 1 contract
Changed Circumstances. (a) If in the introduction event that:
(i) on any date on which the Adjusted LIBOR Rate would otherwise be set the Bank shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the 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 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan to a LIBOR Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the London interbank market or (2) compliance by the 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 interpretation or administration thereof or with any request or directive of any such governmental authority (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 until suspended. If at the Agent -------------- 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 notify be deemed to be void and the Borrower that 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 (which shall not be earlier than the circumstances causing date such suspension no longer existnotice 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 the Borrower shall forthwith prepay may borrow a Loan of another type in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date accordance with Section 2.1 hereof by giving a Notice of such prepayment Borrowing or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due Conversion pursuant to SECTION 3.10Section 2.2 hereof.
(b) If in case any law, regulation, treaty or official directive or the Agent shall, at least one Business Day before interpretation or application thereof by any court or by any governmental authority charged with the date administration thereof or the compliance with any guideline or request of any requested Revolving Credit Loan central bank or other governmental authority (whether or not having the effective date 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, the Bank (other than such requirements as are already included in the determination of the Adjusted LIBOR Rate), or
(iii) imposes upon the Bank any other condition with respect to its performance under this Agreement, and the result of any conversion or continuation of an existing Loan the foregoing is to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect increase the cost to the Lenders of making Bank, reduce the income receivable by the Bank or funding such Pending Loan as a Eurodollar Rate Loan or that impose any expense upon the Interbank Offered Rate is not determinable from Bank with respect to any interest rate reporting service of recognized standingLoans, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent Bank shall notify the Borrower that Company thereof. The Company agrees to pay to the circumstances causing Bank the amount of such suspension no longer existincrease in cost, reduction in income or additional expense as and each Pending Loan when such cost, reduction or expense is incurred or determined, upon presentation by the Bank of a statement in the amount and each such subsequent Loan requested to be madesetting forth the Bank's calculation thereof, continued or converted which statement shall be made or continued as or converted into a Prime Rate Loandeemed true and correct absent manifest error.
Appears in 1 contract
Changed Circumstances. (a) If Subject to the introduction provisions of this Agreement, the Borrower shall have the option (A) as of any date, to convert all or any change part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, 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 LIBOR Loans as LIBOR Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the LIBOR Loans to Base Rate Loans; and (D) at any time, to request new Revolving Credit Loans as Base Rate Loans; provided, that Revolving Credit Loans may not be continued as or converted to 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.
(b) The Agent’s determination of the LIBOR Rate as provided above shall be conclusive. Furthermore, if the 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 Agent or the Lenders in the interpretation London Interbank LIBOR market in the ordinary course of (in each case, after the date hereof) any law or regulation makes it unlawfulbusiness, or any Governmental Authority asserts(B) by reason of circumstances affecting the London Interbank 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 Borrower to be 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 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 Agent shall promptly notify the Borrower and (1) all existing LIBOR Loans shall convert to Base Rate Loans upon the end of the applicable Interest Period, and (2) no additional LIBOR Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, that 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 is unlawful, unlawful for any Lender to perform its obligations hereunder the Agent or the Lenders to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunderLIBOR Loans, such Lender shall notify the Agent of such event and then the Agent shall promptly notify the Borrower of such event, and (A) the right LIBOR Loans shall immediately convert to Base Rate Loans on the last Business Day of the Borrower to select Eurodollar Rate Loans for any subsequent then existing Interest Period or on such earlier date as required by law and (B) no additional LIBOR Loans shall be made until such circumstance is cured.
(d) The Borrower shall reimburse each Lender on demand for any loss incurred or to be incurred by it in connection with the reemployment of the funds released (i) resulting from any subsequent 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 shall be suspended until the Agent shall notify the Borrower that the circumstances causing required or permitted under this Agreement, if such suspension no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion LIBOR Loan is not prepaid other than on the last day of the Interest Period applicable 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 Eurodollar 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 the period from the date of such payment or failure to borrow to the last day (x) in the case of a payment or refinancing with Base Margin Loans other than on the last day of the Interest Period for such LIBOR Loan, of the then current Interest Period for such LIBOR Loan, or (y) in the case of such failure to borrow, 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 shall also pay any from time to time one or more certificates setting forth the amount due pursuant to SECTION 3.10of such loss as determined by such Lender and setting forth in reasonable detail the manner in which such amount was determined.
(be) 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 shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date Lenders; (B) subject the Agent, the Lenders or the LIBOR Loans to any Tax or change the basis of any conversion taxation of payments to the Agent or continuation the Lenders of an existing Loan to be made principal or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify interest due from the 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 LIBOR Loans or the Agent’s or any Lender’s funding thereof, and the Agent or Lenders shall determine (which determination shall be conclusive) that the Eurodollar Rate will not adequately reflect result of the foregoing is to increase the cost to the Agent or the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan maintaining the LIBOR Loans or that to reduce the Interbank Offered Rate is not determinable from any amount of principal or interest rate reporting service of recognized standingreceived by the Agent or Lenders hereunder, then the right Borrower shall pay to the Agent or the Lenders, on demand, such additional amounts as the 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,
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the LIBOR Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or Lenders shall be subject to any Tax in respect of any LIBOR Loans or any part thereof or, (B) the Borrower shall be required to withhold or deduct any Tax from any such amount, the LIBOR Rate applicable to such LIBOR Loans shall be adjusted by the Agent or Lenders to reflect all additional costs incurred by the Agent or Lenders in connection with the payment by the Agent or Lenders or the withholding by the Borrower of such Tax and the Borrower shall provide the Agent or Lenders with a statement detailing the amount of any such Tax actually paid by the Borrower. Determination by the Agent or Lenders of the amount of such costs shall be conclusive. If after any such adjustment any part of any Tax paid by the Agent or Lenders is subsequently recovered by the Agent or Lenders , the Agent or Lenders, as applicable, shall reimburse the Borrower to select Eurodollar Rate Loan for the extent of the amount so recovered. A certificate of an officer of the Agent setting forth the amount of such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan recovery and the basis therefor shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loanconclusive.
Appears in 1 contract
Changed Circumstances. (a) If Subject to the introduction provisions of or any change in or in the interpretation of (in each casethis Agreement, 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate 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 Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full have the option (A) as of any date, to convert all Eurodollar Rate or any part of Base Margin Loans then outstanding and shall pay all interest accrued thereon through the date to, or request that new Revolving Credit Loans be made as, LIBOR Loans of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion various Interest Periods; (B) as of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of any Interest Period, to continue all or any portion of the relevant LIBOR Loans as LIBOR Loans; (C) as of the last day of any Interest Period applicable Period, to such Eurodollar convert all or any portion of the LIBOR Loans to Base Rate LoanLoans; and (D) at any time, to request new Revolving Credit Loans as Base Rate Loans; provided, that Revolving Credit Loans may not be continued as or converted to LIBOR Loans, if the Borrower shall also pay any amount due pursuant to SECTION 3.10continuation 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.
(b) If The Agent’s determination of the LIBOR Rate as provided above shall be conclusive. Furthermore, if the Agent shallor the Lenders determines, at least one Business Day before in good faith (which determination shall be conclusive), prior to the date commencement of any requested Interest Period that (A) U.S. Dollar deposits of sufficient amount and maturity for funding the Revolving Credit Loan Loans are not available to the Agent or the effective date Lenders in the London Interbank LIBOR market in the ordinary course of any conversion business, or continuation (B) by reason of an existing Loan circumstances affecting the London Interbank LIBOR market, adequate and fair means do not exist for ascertaining the rate of interest to be made or continued as or converted into a Eurodollar Rate Loan (each such requested applicable to the Revolving Credit Loan made and Loan Loans requested by the Borrower to be converted LIBOR Loans or continuedthe Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, a PENDING LOAN)but not limited to, notify official reserve requirements required by Regulation D to the Borrower that extent not given effect in determining the Eurodollar 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 funding maintaining LIBOR Loans during such Pending Loan as Interest Period, the Agent shall promptly notify the Borrower and (1) all existing LIBOR Loans shall convert to Base Rate Loans upon the end of the applicable Interest Period, and (2) no additional 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 Eurodollar Rate Loan “Regulatory Change”), shall, in the opinion of counsel to the Agent or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standingLenders, make it unlawful for the Agent or the Lenders to make or maintain LIBOR Loans, then the right Agent shall promptly notify the Borrower and (A) the LIBOR Loans shall immediately convert to Base 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 LIBOR Loans shall be made until such circumstance is cured.
(d) The 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 the period from the date of such payment or failure to borrow to the last day (x) in the case of a payment or refinancing with Base Margin Loans other than on the last day of the Interest Period for such LIBOR Loan, of the then current Interest Period for such LIBOR Loan, or (y) in the case of such failure to borrow, 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 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 Borrower to select Eurodollar Rate 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 LIBOR Loans or the Agent’s or any Lender’s funding thereof, and the 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 LIBOR Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrower shall pay to the Agent or the Lenders, on demand, such additional amounts as the 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.
(f) All payments made by Borrower hereunder or under any other Loan for Document will be made without setoff, counterclaim, or other defense. In addition, all such Pending Loanpayments will be made free and clear of, and without deduction or withholding for, any subsequent Revolving Credit 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 connection with any subsequent conversion or continuation 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 shall be suspended until Document or from the execution, delivery, performance, recordation, or filing of, or otherwise with respect to this Agreement or any other Loan Document.
(g) If the Agent shall notify or a Lender determines, in its sole discretion, that it has received a refund of any Taxes with respect to which the Borrower that 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 circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested Borrower (but only to be the extent of payments made, continued or converted additional amounts paid, by the Borrower under Section 2.20(f) with respect to Taxes giving rise to such a refund), net of all out-of-pocket expenses of the Agent or such Lender and without interest (other than any interest paid by the relevant governmental authority with respect to 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 the event the Agent or such Lender is required to repay such refund to such governmental authority. Notwithstanding anything in this Agreement to the contrary, this Section 2.20 shall not be made construed to require the Agent or continued as any Lender to make available its tax returns (or converted into a Prime Rate Loanany other information which it deems confidential) to Borrower or any other Person.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) If on any date on which 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 Eurodollar Applicable LIBOR Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and would otherwise be set the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or have determined in connection with any subsequent conversion of any Loan good faith (which good faith determination shall be suspended until final and conclusive) that adequate and fair means do not exist for ascertaining the Agent shall notify the Borrower that the circumstances causing such suspension no longer existLIBOR Rate, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loansas applicable; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.or
(b) If at any time the Agent shallshall have determined in good faith (which good faith determination shall be final and conclusive) that
(i) the implementation of LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market, at least one Business Day before 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 date interpretation or administration thereof or with any request or directive of any requested Revolving Credit Loan such Governmental Authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding obtaining the relevant currency in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standingevent, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall forthwith so notify the Borrower Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances causing giving rise to such suspension notice no longer existapply (which notice the Agent agrees to give at or about the same time that it gives similar notices to its customers similarly situated), the obligation of the Lenders and each Pending Loan and each the Agent to allow election by the Borrowers 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 subsequent Loan requested Pricing Notice shall automatically be deemed to be made, continued withdrawn and be of no force or converted effect. Upon such date as shall be made or continued as or converted into a Prime specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate LoanLoans shall be terminated and the Borrowers shall pay all interest due on such LIBOR Rate Loans and any amounts required to be paid pursuant to Section 4.3 (except in the case of the termination of LIBOR Loans pursuant to Section 2.16(b)(ii) in which case such LIBOR Loans shall continue until the end of the applicable Interest Period).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Gerber Scientific Inc)
Changed Circumstances. (a) Borrower agrees that if (i) any law hereafter in effect or (ii) any request, guideline or directive of any Governmental Authority (whether or not having the force of law 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 reserve, special deposit, capital maintenance or similar requirement against any Advance, (2) impose on such Lender any other condition regarding any Advance, this Agreement, any Note or the 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 such Lender to any taxes on the recording, registration, notarization or other formalization of the Revolving Credit Loans or any Note, and the result of any event referred to in CLAUSE (I) or (II) above shall be to increase the cost to such Lender of making, funding or maintaining any Advance or to reduce the amount of any sum receivable by such Lender or 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 an amount deemed by such Lender to be material, then, upon demand by such Lender, Borrower shall immediately pay to such Lender additional amounts which shall be sufficient to compensate such Lender for such increased cost, tax or reduced rate of return. A certificate of such Lender to the Borrower 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 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 may use any reasonable averaging and attribution methods.
(b) 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 Eurodollar Rate Loans LIBOR Advances or to fund or maintain Eurodollar Rate Loans LIBOR Advances hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans LIBOR Advances for any subsequent Interest Period or in connection with any subsequent conversion of any Loan 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 Eurodollar Rate Loans 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 Eurodollar Rate Loans then outstanding LIBOR Advances into Prime Rate LoansAdvances; PROVIDEDprovided that, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate LoanLIBOR Advances, the Borrower shall also pay any amount due pursuant to SECTION 3.104.1(A)(III).
(bc) If the Agent shall, at least one (1) Business Day before the date of any requested Revolving Credit Loan Advance or the effective date of any conversion or continuation of an existing Loan Advance to be made or continued as or converted into a Eurodollar Rate Loan LIBOR Advance (each such requested Revolving Credit Loan Advance made and Loan and/or to be converted or continued, a PENDING LOAN"Pending Advance"), notify the Borrower that the Eurodollar Rate LIBOR Advance will not adequately reflect the cost to the Lenders of making or funding such Pending Loan Advance as a Eurodollar Rate Loan LIBOR Advance or that the Interbank Offered Rate LIBOR is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan LIBOR Advances for such Pending LoanAdvance, or any subsequent Revolving Credit Loan or Advances in connection with any subsequent conversion or continuation of any Loan Advance shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan Advances and each such subsequent Loan Advance requested to be made, continued or converted shall be made or continued as as, or converted into a Prime Rate LoanAdvance.
Appears in 1 contract
Sources: Loan and Security Agreement (Loehmanns Holdings Inc)
Changed Circumstances. (a) If the introduction of or any change in or in the interpretation of Each Borrower agrees that if (in each case, after the date hereofi) any law hereafter in effect or regulation makes it unlawful(ii) any request, guideline or directive of any Governmental Authority asserts(whether or not having the force of law 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, after shall either (A) (1) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance or similar requirement against any Revolving Credit Loans, (2) impose on such Lender any other condition regarding any Advance, this Agreement, any Note or the date hereoffacilities provided hereunder, that it is unlawful, for 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 such Lender to perform its obligations hereunder any taxes on the recording, registration, notarization or other formalization of the Revolving Credit Loans or Note, and the result of any event referred to make Eurodollar Rate in clause (i) or (ii) above shall be to increase the cost to such Lender of making, funding or maintaining any Revolving Credit Loans or to fund reduce the amount of any sum receivable by such Lender or maintain Eurodollar Rate such Lender's rate of return on capital with respect to any Revolving Credit Loans hereunderto 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 an amount deemed by such Lender to be material, then, upon demand by such Lender, each Borrower shall immediately pay to such Lender additional amounts which shall be sufficient to compensate such Lender for such increased cost, tax or reduced rate of return. A certificate of 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 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 shall notify the Agent of such event may use any reasonable averaging and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate 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 Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10attribution methods.
(b) If the Agent shall, at least one (1) Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion of the Prime Advances into LIBOR Advances or the continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan LIBOR Advances (each such requested Revolving Credit Loan loan made and Loan and/or to be converted or to continued, a PENDING LOAN"Pending Advance"), notify the Borrower Borrowers that the Eurodollar Rate LIBOR based interest rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan Advance as a Eurodollar Rate Loan LIBOR Advance or that the Interbank Offered Rate LIBOR is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower Borrowers to select Eurodollar Rate Loan a LIBOR Advance for such Pending LoanAdvance, any subsequent Revolving Credit Loan to convert the Prime Advances into LIBOR Advances or in connection with any subsequent conversion or continuation of any Loan to continue the LIBOR Advances, shall be suspended until the Agent shall notify the Borrower Borrowers that the circumstances causing such suspension no longer exist, and each Pending Loan Advances and each such subsequent Loan LIBOR Advance requested to be made, continued or converted shall be made or made, continued as as, or converted into a Prime Rate LoanAdvance.
Appears in 1 contract
Sources: Loan and Security Agreement (Tropical Sportswear International Corp)
Changed Circumstances. (a) If In the introduction event that:
(i) on any date on which the Adjusted Eurodollar Rate would otherwise be set the Bank shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the 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 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan to a Eurodollar Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the interbank Eurodollar market or (2) compliance by the 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 interpretation or administration thereof or with any request or directive of any such governmental authority (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 until suspended. If at the Agent shall notify time the Bank so notifies the Borrower, the Borrower that has previously given the circumstances causing Bank a Loan Request with respect to one or more Affected Loans but such suspension no longer existLoans 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 forthwith prepay be specified in full all Eurodollar Rate Loans then outstanding and such notice (which shall pay all interest accrued thereon through not be earlier than the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, given) the Borrower shall also pay shall, with respect to the outstanding Affected Loans, prepay the same, together with interest thereon and any amount due amounts required to be paid pursuant to SECTION 3.10Section 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) If In case any change in law, regulation, treaty or official directive or the Agent shall, at least one Business Day before interpretation or application thereof by any court or by any governmental authority charged with the date administration thereof or the compliance with any guideline or request of any requested Revolving Credit Loan central bank or other governmental authority (whether or not having the effective date 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, the Bank (other than such requirements as are already included in the determination of the Adjusted Eurodollar Rate), or
(iii) imposes upon the Bank any other condition with respect to its performance under this Agreement. and the result of any conversion or continuation of an existing Loan the foregoing is to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect increase the cost to the Lenders of making Bank, reduce the income receivable by the Bank or funding such Pending Loan as a Eurodollar Rate Loan or that impose any expense upon the Interbank Offered Rate is not determinable from Bank with respect to any interest rate reporting service of recognized standingLoans, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent Bank shall notify the Borrower that thereof. The Borrower agrees to pay to the circumstances causing Bank the amount of such suspension no longer existincrease in cost, reduction in income or additional expense as and each Pending Loan when such cost, reduction or expense is incurred or determined, upon presentation by the Bank of a statement in the amount and each such subsequent Loan requested to be madesetting forth the Bank's calculation thereof, continued or converted which statement shall be made or continued as or converted into a Prime Rate Loandeemed true and correct absent manifest error.
Appears in 1 contract
Changed Circumstances. (a) If In the introduction event that: (i) on any date on which the Adjusted Eurodollar Rate would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the Interbank Offered Rate, or (ii) at any time the Agent shall have received notice that: (A) the making or continuation of or conversion of any Loan to a Eurodollar Loan by any Bank has been made impracticable or unlawful by (l) the occurrence of a contingency that materially and adversely affects the interbank Eurodollar market in which such Bank regularly participates or (2) compliance by 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 interpretation or administration thereof or with any request or directive of any such governmental authority (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 (which shall not be earlier than the date such notice is given) the Borrower shall, 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 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, any Bank (other than such requirements as are already included in the interpretation determination of (in each case, after the date hereof) any law or regulation makes it unlawfulAdjusted Eurodollar Rate), or (iii) imposes upon any Governmental Authority assertsBank any other condition with respect to its performance under this Agreement, after and the date hereofresult of any of the foregoing is to increase the cost to such Bank, that it is unlawful, for reduce the income receivable by such Bank or impose any Lender expense upon such Bank with respect to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunderany Loans, such Lender Bank shall notify the Agent of such event and the Agent shall notify the Borrower thereof. The Borrower agrees to pay to such Bank the amount of such eventincrease in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by the right affected Bank of a statement in the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan amount and setting forth such Bank's calculation thereof, which statement shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, deemed true and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10correct absent manifest error.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.
Appears in 1 contract
Sources: Credit Agreement (FMR Corp)
Changed Circumstances. (a) If The Lender may give the introduction Borrower notice of the occurrence of the following:
(i) The Lender shall 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, that adequate and fair means do not exist for ascertaining such rate.
(ii) The Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(A) The continuation 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any 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 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 (whether or not having the force of law).
(B) The indices on which the interest rates for Eurodollar Loans are based shall be suspended 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.
(b) In the event that the Lender gives the Borrower notice of an occurrence described in Section 2-21(a), then, until the Agent shall notify Lender notifies the Borrower that the circumstances causing giving rise to such suspension notice no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day apply:
(i) The obligation of the Interest Period applicable Lender to make Eurodollar Loans of the type affected by such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant changed circumstances or to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of permit the Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended.
(ii) Any notice which the Borrower had given the Lender with respect to any Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection the time for action with any subsequent conversion or continuation of any Loan respect to which has not occurred prior to the Lender's having given notice pursuant to Section 2-21(a), shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested deemed to be made, continued or converted shall be made or continued as or converted into a Prime Rate request for a Base Margin Loan.
(c) Notwithstanding the foregoing, the Lender agrees to 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 if the making of such designation would allow the Lender or its lending office to continue to make Eurodollar Loans.
Appears in 1 contract
Changed Circumstances. (a) If The Agent may give the introduction Borrower notice of the occurrence of the following:
(i) The Agent shall have determined in good faith on any day on which the rate for a LIBOR Loan would otherwise be set, that, by reason of changes affecting the London interbank market, adequate and fair means do not exist for ascertaining such rate on the basis provided for in the definition of LIBOR Offer Rate.
(ii) 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 or in the interpretation of (in each case, law occurring after the date hereof) of this Agreement that materially and adversely affects the applicable market or compliance by the Agent or any Lender in good faith with any applicable law or regulation makes it unlawfulgovernmental 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 (whether or not having the force of law).
(B) The indices on which the interest rates for LIBOR Loans are determined shall no longer represent the effective cost to the Agent or any Governmental Authority asserts, after Lender for U.S. dollar deposits in the date hereof, interbank market for deposits in which it regularly participates.
(b) In the event that it is unlawful, for any Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify gives the Borrower notice of such eventan occurrence described in Section 2-18(a), and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended then, until the Agent shall notify notifies the Borrower that the circumstances causing giving rise to such suspension notice no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day apply:
(i) The obligation of the Interest Period applicable Agent and of each Lender to make LIBOR Loans of the type affected by such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant changed circumstances or to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of permit the Borrower to select Eurodollar Rate Loan for such Pending the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended.
(ii) Any notice which the Borrower had given the Agent with respect to any LIBOR Loan, any subsequent Revolving Credit Loan or in connection the time for action with any subsequent conversion or continuation of any Loan respect to which has not occurred prior to the Agent's having given notice pursuant to Section 2-18(a), shall be suspended until deemed at the option of the Agent shall notify the Borrower that the circumstances causing to not having been given and such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted loan shall be made or continued as as, or converted into into, as appropriate, a Prime Rate Base Margin Loan.
(iii) Subject to the provisions of Section 2-11, the Borrower may (and shall, with respect to the occurrence of any event described in Section ), cancel the relevant borrowing or conversion notice on the same date the Borrower was notified of such event, or if the LIBOR Loan is then outstanding, prepay the affected LIBOR Loan.
Appears in 1 contract
Changed Circumstances. (a) If In the introduction event that:
(i) on any date on which the Adjusted Eurodollar Rate would otherwise be set the Bank shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the 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 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan to a Eurodollar Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the London interbank Eurodollar market or (2) compliance by the 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 interpretation or administration thereof or with any request or directive of any such governmental authority (whether or not having the force of law); or
(B) the Adjusted Eurodollar Rate shall be suspended until no longer represent the Agent 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 Borrower Bank notifies the Borrowers that the circumstances causing giving rise to such suspension notice no longer existapply, and the Borrower obligation of the Bank to allow selection by the Borrowers of Eurodollar Loans shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through be suspended. If at the date of such prepayment or conversion, unless time the Bank so notifies each Borrower, within three Business Days after a Borrower has previously given the Bank a Loan Request with respect to one or more Eurodollar Loans but such notice from the AgentLoans have not yet gone into effect, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDEDsuch Loan Request shall be deemed to be void and, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable Bank in its discretion continues to be willing to lend to such Eurodollar Rate LoanBorrower, the such Borrower shall also pay any amount due may borrow Loans of a non-affected type by delivering a substitute Loan Request pursuant to SECTION 3.10Section 2.2(a) hereof.
(b) If In case any change in law, regulation, treaty or official directive or the Agent shall, at least one Business Day before interpretation or application thereof by any court or by any governmental authority charged with the date administration thereof or the compliance with any guideline or request of any requested Revolving Credit Loan central bank or other governmental authority (whether or not having the effective date 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, the Bank (other than such requirements as are already included in the determination of the Adjusted Eurodollar Rate), or (iii) imposes upon the Bank any other condition with respect to its performance under this Agreement, -13- and the result of any conversion or continuation of an existing Loan the foregoing is to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect increase the cost to the Lenders Bank, reduce the income receivable by the Bank or impose any expense upon the Bank with respect to any Loans, the Bank shall notify each Borrower thereof. The applicable Borrower(s) agree(s) to pay to the Bank the amount of making such increase in cost, reduction in income or funding additional expense attributable to such Pending Loan as a Eurodollar Rate Loan or that Loans as and when such cost, reduction or expense is incurred or determined, upon presentation by the Interbank Offered Rate is not determinable from any interest rate reporting service Bank of recognized standinga statement in the amount and setting forth the Bank's calculation thereof, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan which statement shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, deemed true and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loancorrect absent manifest error.
Appears in 1 contract
Sources: Credit Agreement (Gt Global Floating Rate Fund Inc)
Changed Circumstances. (a) If In the introduction of event that:
(i) on any date on which the Adjusted LIBOR Rate would otherwise be set the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the Interbank Offered 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 any change in or in the interpretation of (in each case, after the date hereof) any law or regulation makes it unlawfulcontinuation of, or any Governmental Authority asserts, after the date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan to, a LIBOR Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the London interbank market or (2) compliance by the 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 interpretation or administration thereof or with any request or directive of any such governmental authority (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 until suspended. If at the time the Administrative Agent shall notify so notifies the Borrower, the Borrower that has previously given the circumstances causing Administrative Agent a Notice of Borrowing or Conversion with respect to one or more Affected Loans but such suspension no longer existLoans 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 forthwith prepay be specified in full all Eurodollar Rate Loans then outstanding and such notice (which shall pay all interest accrued thereon through not be earlier than the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from is given) the AgentBorrower shall, requests with respect to the conversion 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 all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if 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 be applied to the date of such repayment or proposed conversion is Borrower so as not to discriminate against the last day Borrower vis-a-vis other customers of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10Bank.
(b) If In case any law, regulation, treaty or official directive or the Agent shall, at least one Business Day before interpretation or application thereof by any court or by any governmental authority charged with the date administration thereof or the compliance with any guideline or request of any requested Revolving Credit 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, the Administrative Agent or any Bank (other than such requirements as are already included in the determination of the Adjusted LIBOR Rate), or
(iii) imposes upon the Administrative Agent or any Bank any other condition with respect to its performance under this Agreement or any other Loan or Document, and the effective date result of any conversion or continuation of an existing Loan the foregoing is to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect increase the cost to the Lenders Administrative Agent or such Bank, reduce the income receivable by the Administrative Agent or such Bank or impose any expense upon the Administrative Agent or such Bank with respect to any Loans or any payments made under or with respect to the Letters of making or funding such Pending Loan as a Eurodollar Rate Loan or that Credit, the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Administrative Agent shall promptly notify the Borrower that thereof. The Borrower agrees to pay to the circumstances causing Administrative Agent or such suspension no longer existBank the amount of such increase in cost, reduction in income or additional expense as and each Pending Loan when such cost, reduction or expense is incurred or determined, upon presentation by the Administrative Agent or such Bank of a written statement of such amount and each setting forth in reasonable detail the Administrative Agent's or such subsequent Loan requested to be madeBank's calculation thereof, continued or converted which statement shall be made or continued deemed true and correct absent manifest error. The provisions of this Section 2.10(b) shall be applied to the Borrower so as or converted into a Prime Rate Loannot to discriminate against the Borrower vis-a-vis other customers of the applicable Bank.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Mac-Gray Corp)
Changed Circumstances. In the event that: (a) If on any day on which the introduction rate for a LIBOR Loan would other wise be set, the Lender shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining such rate; or (b) at any time the Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the continuation of or conversion of any Revolving Credit 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 Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change in thereof by any governmental authority charged with the interpretation or administration thereof or with any request or directive of any such governmental authority (whether or not having the force of law); or (ii) the indices on which the interest rates for LIBOR Loan shall no longer represent the effective cost to the Lender for U.S. dollar deposits in the interpretation of (interbank market for deposits in each casewhich it regularly participates; then, after the date hereof) and in 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan Lender shall be suspended until the Agent shall forthwith so notify the Lead Borrower thereof. Until the Lender notifies the Lead Borrower that the circumstances causing giving rise to such suspension notice no longer existapply, the obli- gation of the Lender to make LIBOR 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 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 more LIBOR Loans, but such Revolving Credit Loans have not yet gone into effect, such notifi cation shall be deemed to be void and the Lead Borrower shall forthwith prepay in full all Eurodollar Rate may borrow Revolving Credit Loans then which are Base Margin Loans by giving a sub stitute Renewal/Conversion Notice. Upon the expiration of the Interest Period for any LIBOR Loan which is outstanding and shall pay all interest accrued thereon through on the date of such prepayment or conversionnotification, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date amount of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any LIBOR Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into thereafter constitute a Prime Rate Base Margin Loan.
Appears in 1 contract
Changed Circumstances. a) In the event that:
(1) on any date on which the Adjusted LIBOR Rate would otherwise be set the BANK shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the 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) If the introduction making or continuation of the Loan as a LIBOR Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the interbank LIBOR market or (2) compliance by the BANK in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change in or in thereof by any governmental authority charged with the interpretation of (in each case, after the date hereof) any law or regulation makes it unlawful, administration thereof or any Governmental Authority asserts, after the date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion request or directive of any Loan shall be suspended until such governmental authority (whether or not having the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date force of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loanslaw); PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.or
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or Adjusted LIBOR Rate shall no longer represent the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding BANK for U.S. dollar deposits in the interbank market for deposits in which it regularly participates; then, and in any such Pending Loan as a Eurodollar Rate Loan or that event, the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan BANK shall be suspended until the Agent shall forthwith so notify the Borrower BORROWER thereof. Until the BANK notifies the BORROWER that the circumstances causing giving rise to such suspension notice no longer existapply, and each Pending Loan and each such subsequent Loan requested the obligation of the BANK to be made, continued or converted allow selection by the BORROWER of LIBOR Loans shall be made or continued as or converted into suspended. If at the time the BANK so notifies the BORROWER, the BORROWER has previously given the BANK a Prime Rate Loan.Notice of Borrowing and/or Selection of Interest Period with
Appears in 1 contract
Sources: Loan Agreement (Galileo Corp)
Changed Circumstances. (a) If Subject to the introduction provisions of this Agreement, the Borrower shall have the option (A) as of any date, to convert all or any change part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, 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 Eurodollar Loans as Eurodollar Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Eurodollar Loans to Base Rate Loans; and (D) at any time, to request new Revolving Credit Loans as Base Rate Loans; provided, that Revolving Credit Loans may not be continued as or converted to Eurodollar Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.20(b) or 2.20(c) of this Agreement or if an Event of Default has occurred.
(b) The Agent's determination of the Eurodollar Rate as provided above shall be conclusive. Furthermore, if the 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 Agent or the Lenders in the interpretation London Interbank Eurodollar market in the ordinary course of (in each case, after the date hereof) any law or regulation makes it unlawfulbusiness, or any Governmental Authority asserts(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 Borrower to be 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 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 Agent shall promptly notify the Borrower and (1) all existing Eurodollar Loans shall convert to Base Rate Loans upon the end of the applicable Interest Period, and (2) no additional Eurodollar Loans shall be made until such circumstances are cured.
(c) If, after the date hereof, that 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 Eurodollar Loans, then the Agent shall promptly notify the Borrower and (A) the Eurodollar Loans shall immediately convert to Base 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 Eurodollar Loans shall be made until such circumstance is unlawfulcured.
(d) If, for any Lender reason, an Eurodollar Loan is paid prior to perform the last Business Day of any Interest Period or if an Eurodollar Loan does not occur on a date specified by the Borrower in its obligations hereunder request (other than as a result of a default by the Agent or the Lenders), the Borrower agrees to make Eurodollar Rate Loans 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 Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate 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 Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, ) cost or expense incurred by the Borrower shall also pay any amount due pursuant to SECTION 3.10Agent or the Lenders as a result of such prepayment.
(be) 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 shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date Lenders; (B) subject the Agent, the Lenders or the Eurodollar Loans to any Tax or change the basis of any conversion taxation of payments to the Agent or continuation the Lenders of an existing Loan to be made principal or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify interest due from the 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 Eurodollar Loans or the Agent's or any Lender’s funding thereof, and the Agent or Lenders shall determine (which determination shall be conclusive) that the Eurodollar Rate will not adequately reflect result of the foregoing is to increase the cost to the Agent or the Lenders of making or funding such Pending Loan as a maintaining the Eurodollar Rate Loan Loans or that to reduce the Interbank Offered Rate is not determinable from any amount of principal or interest rate reporting service of recognized standingreceived by the Agent or Lenders hereunder, then the right Borrower shall pay to the Agent or the Lenders, on demand, such additional amounts as the 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.
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Eurodollar Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or Lenders shall be subject to any Tax in respect of any Eurodollar Loans or any part thereof or, (B) the Borrower shall be required to withhold or deduct any Tax from any such amount, the Eurodollar Rate applicable to such Eurodollar Loans shall be adjusted by the Agent or Lenders to reflect all additional costs incurred by the Agent or Lenders in connection with the payment by the Agent or Lenders or the withholding by the Borrower of such Tax and the Borrower shall provide the Agent or Lenders with a statement detailing the amount of any such Tax actually paid by the Borrower. Determination by the Agent or Lenders of the amount of such costs shall be conclusive. If after any such adjustment any part of any Tax paid by the Agent or Lenders is subsequently recovered by the Agent or Lenders , the Agent or Lenders, as applicable, shall reimburse the Borrower to select Eurodollar Rate Loan for the extent of the amount so recovered. A certificate of an officer of the Agent setting forth the amount of such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan recovery and the basis therefor shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loanconclusive (absent manifest error).
Appears in 1 contract
Sources: Loan and Security Agreement (Wild Oats Markets Inc)
Changed Circumstances. In the event that:
(a) If On any day on which the introduction rate for a LIBOR Loan would otherwise be set, the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining either such rate; or
(b) At any time that the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the continuation of 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 in 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 shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the interpretation of (interbank market for deposits in each casewhich they regularly participate; then, after the date hereof) and in 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended until the Administrative Agent shall forthwith so notify the Lead Borrower thereof. Until the Administrative Agent notifies the Lead Borrower that the circumstances causing giving rise to such suspension notice no longer existapply, the obligation of the Lenders to make LIBOR 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 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 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 the Lead Borrower shall forthwith prepay in full all Eurodollar Rate may only borrow Base Margin Loans then outstanding and shall pay all interest accrued thereon through furnish a substitute Renewal/Conversion Notice. Upon the expiration of the Interest Period for any LIBOR Loan which is outstanding on the date of such prepayment or conversionnotification, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date amount of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any LIBOR Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into thereafter constitute a Prime Rate Base Margin Loan.
Appears in 1 contract
Changed Circumstances. (a) If In the introduction event that:
(i) on any date on which the Effective LIBO Rate would otherwise be set the Lender shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining such rate, 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 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan to a LIBOR Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the London interbank eurodollar market or (2) compliance by the 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 (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 until suspended. If at the Agent shall notify time the Lender so notifies the Borrower, the Borrower that has previously given the circumstances causing Lender a Notice of Borrowing or Conversion with respect to one or more Affected Loans but such suspension no longer existLoans 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 forthwith prepay be specified in full all Eurodollar Rate Loans then outstanding and such notice (which shall pay all interest accrued thereon through not be earlier than the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, given) the Borrower shall also pay shall, with respect to the outstanding Affected Loans, prepay the same, together with interest thereon and any amount due amounts required to be paid pursuant to SECTION 3.10Section 2.17, 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) If In case any law, regulation, treaty or official directive or the Agent shall, at least one Business Day before interpretation or application thereof by any court or by any governmental authority charged with the date administration thereof or the compliance with any guideline or request of any requested Revolving Credit Loan central Lender or other governmental authority (whether or not having the effective date 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, the Lender (other than such requirements as are already included in the determination of the Effective LIBO Rate), or
(iii) imposes upon the Lender any other condition with respect to its performance under this Agreement, and the result of any conversion or continuation of an existing Loan the foregoing is to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect increase the cost to the Lenders of making Lender, reduce the income receivable by the Lender or funding such Pending Loan as a Eurodollar Rate Loan or that impose any expense upon the Interbank Offered Rate is not determinable from Lender with respect to any interest rate reporting service of recognized standingLoans, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent Lender shall notify the Borrower that thereof. The Borrower agrees to pay to the circumstances causing Lender the amount of such suspension no longer existincrease in cost, reduction in income or additional expense as and each Pending Loan when such cost, reduction or expense is incurred or determined, upon presentation by the Lender of a statement in the amount and each such subsequent Loan requested to be madesetting forth the Lender's calculation thereof, continued or converted which statement shall be made or continued as or converted into a Prime Rate Loandeemed true and correct absent manifest error.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Bird Corp)
Changed Circumstances. (a) If In the introduction event that:
(i) on any date on which the Eurodollar Rate would otherwise be set, Bank of Boston shall have determined in good faith (which determination shall be final and conclusive) that adequate and reasonable means do not exist for ascertaining the Eurodollar Rate, or
(ii) the Majority Lenders shall notify the Agent that they have determined in good faith (which determination shall be final and conclusive) that the Eurodollar Rate shall no longer represent the effective cost to the Majority Lenders of making or maintaining Eurodollar Advances to be made by them, or
(iii) any Lender shall notify the Agent 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 contingency that materially and adversely affects the interbank Eurodollar market or (B) compliance by such Lender in good faith with any Applicable Law 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 (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) Until the Agent notifies the Borrower that the circumstances giving rise to any notice given pursuant to SECTION 3.10(A) no longer apply, 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 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 in 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 (in each case, after whether or not having the date hereofforce of law):
(i) any law or regulation makes it unlawful, or any Governmental Authority asserts, after the date hereof, that it is unlawful, for subjects any Lender to perform 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, any Lender (other than such requirements as are already provided for in SECTION 3.1(B)(II)), or
(iii) imposes upon any Lender any other condition with respect to its obligations hereunder performance under this Agreement, and the result of any of the foregoing is to make Eurodollar Rate Loans increase the cost to such Lender, reduce the income receivable by such Lender or impose any expense upon such Lender with respect to fund or maintain Eurodollar Rate Loans hereunderany Advances, such Lender shall notify the Agent and the Borrower thereof. The Borrower agrees to pay to such Lender the amount of such event 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 Lender of a statement of the Agent amount and setting forth such Lender's calculation thereof, which statement shall be deemed true and correct absent manifest error, PROVIDED, that no Lender shall be entitled to charge nor shall the Borrower be obligated to pay any such amount relating to a period more than 90 days prior to the date on which such statement is presented.
(c) If any Lender determines that (i) the adoption of 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 any such entity regarding capital adequacy (whether or not having the force of 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 full utilization of such Lender's capital) by any amount deemed by such Lender to be material, then such Lender shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate 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 Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall thereof. The Borrower agrees to pay all interest accrued thereon through to such Lender the date amount of such prepayment or conversionreduction of capital as and when such reduction is determined, unless upon presentation by such Lender of a statement of the Borroweramount and setting forth such Lender's calculation thereof, within three Business Days after such notice from the Agentwhich statement shall be deemed true and correct absent manifest error, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if no Lender shall be entitled to charge nor shall the Borrower be required to pay any such amount relating to a period more than 90 days prior to the date of on which such repayment or proposed conversion statement is not the last day of the Interest Period applicable to presented. In determining such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continuedamount, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from Lender may use any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, reasonable averaging and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loanattribution methods.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Synthetic Industries Inc)
Changed Circumstances. (a) If In the introduction of or event that:
(i) on any change in or in date on which 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 Eurodollar Adjusted Eurocurrency Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and would otherwise be set the Agent shall notify have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the Borrower 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 such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan to a Eurocurrency Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the interbank Eurocurrency market for Dollar or Alternative Currency deposits or (2) compliance by 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 interpretation or administration thereof or with any request or directive of any such governmental authority (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
(C) in the case of Eurocurrency Loans denominated in an Alternative Currency, the relevant Alternative Currency is not available in the relevant amounts or 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 suspended until 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 Borrower Company and each Borrowing Subsidiary thereof. Until the Agent notifies the Company and each Borrowing Subsidiary that the circumstances causing giving rise to such suspension notice no longer existapply, 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 the Borrower shall forthwith prepay may borrow a Loan of another type in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date accordance with Section 2.1 hereof by giving a Notice of such prepayment Borrowing or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due Conversion pursuant to SECTION 3.10Section 2.3 hereof.
(b) If In case any law, regulation, treaty or official directive or the Agent shall, at least one Business Day before interpretation or application thereof by any court or by any governmental authority charged with the date administration thereof or the compliance with any guideline or request of any requested Revolving Credit Loan central bank or other governmental authority (whether or not having the effective date 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, any Bank (other than such requirements as are already included in the determination of the Adjusted Eurocurrency Rate), or
(iii) imposes upon any Bank any other condition with respect to its performance under this Agreement, and the result of any conversion or continuation of an existing Loan the foregoing is to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect increase the cost to such Bank, reduce the Lenders income receivable by such Bank or impose any expense upon such Bank with respect to any Loans, such Bank shall endeavor to designate a different Lending Office for such Loans if such designation will avoid the need for, or reduce the amount of, such cost or reduction and will not, in the sole opinion of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate Bank, be disadvantageous to such Bank. If such Bank is not determinable from able to so designate an alternative Lending Office, such Bank shall forthwith notify the Company thereof. The Company agrees to pay to any interest rate reporting service Bank the amount of recognized standingsuch increase in cost, then 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 right of the Borrower to select Eurodollar Rate Loan for amount and setting forth such Pending LoanBank's calculation thereof, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan which statement shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, deemed true and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loancorrect absent manifest error.
Appears in 1 contract
Sources: Secured Revolving Credit Agreement (Picturetel Corp)
Changed Circumstances. (a) If The Agent may give the introduction Borrower notice of the occurrence of the following:
(i) The Agent shall 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, that adequate and fair means do not exist for ascertaining such rate.
(ii) 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 occurrence of a contingency that materially and adversely affects the applicable market or compliance by the Agent in good faith with any applicable Requirements of Law 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 (whether or not having the force of law).
(B) The indices on which the interest rates for Eurodollar Loans are based shall no longer represent the effective cost to the Agent or any change in or Lender for U.S. dollar deposits in the interpretation of interbank market for deposits in which it regularly participates.
(in each case, after b) In the date hereof) any law or regulation makes it unlawful, or any Governmental Authority asserts, after the date hereof, event that it is unlawful, for any Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify gives the Borrower notice of such eventan occurrence described in Section 2-21(a), and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended then, until the Agent shall notify notifies the Borrower that the circumstances causing giving rise to such suspension notice no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day apply:
(i) The obligation of the Interest Period applicable Agent and each Lender to make Eurodollar Loans of the type affected by such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant changed circumstances or to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of permit the Borrower to select Eurodollar Rate Loan for such Pending Loan, the affected interest rate as otherwise applicable to any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan Loans shall be suspended until suspended.
(c) Notwithstanding the Agent shall notify foregoing, each Lender agrees to 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 if the Borrower that the circumstances causing making of such suspension no longer exist, and each Pending Loan and each designation would allow such subsequent Loan requested Lender or its lending office to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loancontinue to make Eurodollar Loans.
Appears in 1 contract
Sources: Secured Superpriority Debtor in Possession Loan, Security and Guaranty Agreement (Aeropostale Inc)
Changed Circumstances. (a) If In the introduction event that:
(i) on any date on which the Adjusted Eurodollar Rate would otherwise be set the Bank shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the 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 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 Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan to a Eurodollar Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the London interbank Eurodollar market or (2) compliance by the 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 interpretation or administration thereof or with any request or directive of any such governmental authority (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 until suspended. If at the Agent 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 notify be deemed to be void and, if the Bank in its discretion continues to be willing to lend to such Borrower, such Borrower that 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 (which shall not be earlier than the circumstances causing date such suspension no longer existnotice is given) each Borrower shall, 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 the Borrower shall forthwith prepay may borrow Loans of another type in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due accordance with Section 2.1 hereof by delivering substitute Loan Requests pursuant to SECTION 3.10Section 2.2(a) hereof.
(b) If In case any change in law, regulation, treaty or official directive or the Agent shall, at least one Business Day before interpretation or application thereof by any court or by any governmental authority charged with the date administration thereof or the compliance with any guideline or request of any requested Revolving Credit Loan central bank or other governmental authority (whether or not having the effective date 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, the Bank (other than such requirements as are already included in the determination of the Adjusted Eurodollar Rate), or
(iii) imposes upon the Bank any other condition with respect to its performance under this Agreement, and the result of any conversion or continuation of an existing Loan the foregoing is to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect increase the cost to the Lenders of making Bank, reduce the income receivable by the Bank or funding impose any expense upon the Bank with respect to any Loans, the Bank shall notify each Borrower thereof. To the extent such Pending Loan as a Eurodollar Rate cost, reduction or expense is attributable to any specific Loan or Loans, the applicable Borrower(s) agree(s) to pay to the Bank the amount of such increase in cost, reduction in income or additional expense attributable to such Loan or Loans as and when 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 proportion that the Interbank Offered Rate is not determinable from any interest rate reporting service average amount of recognized standingLoans 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, then if no Loans shall have been outstanding, 10% of such amount), the right amount of the Borrower to select Eurodollar Rate Loan for such Pending Loanincrease in cost, any subsequent Revolving Credit Loan reduction in income or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer existadditional expense, determined and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued paid as or converted into a Prime Rate Loanaforesaid.
Appears in 1 contract
Sources: Credit Agreement (RBB Fund Inc)
Changed Circumstances. Notwithstanding anything to the contrary contained herein, if (ai) 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 interpretation thereof by any Governmental Authority asserts, after the date hereof, that makes it is unlawful, unlawful for any a Lender to perform its obligations hereunder to make Eurodollar Rate Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate 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 Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that a Base Rate Loan as to which the Interbank Offered Rate is not determinable from any interest rate reporting service is determined by reference to the LIBOR Rate, (ii) the Required Lenders determine in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that it has become impracticable as a result of recognized standing, then a circumstance that adversely affects the right London interbank market or the position of the Borrower such Lender in such market to select 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 LIBOR Rate, in the case of a proposed Base Rate Loan as to which the interest rate is determined by reference to the LIBOR Rate) does not adequately and fairly reflect the cost to such Pending Lenders of funding such Term Loan, then, in each case, such Lender or Lenders shall give notice thereof to the Administrative Agent and the Borrower and may (A) declare 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, such that any subsequent Revolving Credit Loan request for Eurodollar Rate Loans or in connection with any subsequent conversion or continuation of any Loan Base Rate Loans as to which the interest rate is determined by reference to the LIBOR Rate from such Lender shall be suspended until deemed to be a request for a Base Rate Loan, unless such Lender’s declaration has been withdrawn (and it shall be withdrawn promptly upon the Agent shall notify the Borrower that cessation of the circumstances causing described in clause (i) or (ii) above) and (B) require that all outstanding Eurodollar Rate Loans or Base Rate Loans as to which the interest rate is determined by reference to the LIBOR Rate made by such suspension no longer existLender be converted to Base Rate Loans (as to which the interest rate is not determined by reference to the LIBOR Rate) immediately, in which event all outstanding Eurodollar Rate Loans and each Pending Base Rate Loan and each as to which the interest rate is determined by reference to the LIBOR Rate of such subsequent Loan requested to be made, continued or converted Lender shall be made or continued as or converted into a Prime Rate Loanso converted.
Appears in 1 contract
Changed Circumstances. (a) If In the introduction event that:
(i) on any date on which the Adjusted LIBOR Rate would otherwise be set, the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the Adjusted LIBOR Rate, or
(ii) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(A) the making or continuation of or conversion of any Loan to a LIBOR Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the Interbank LIBOR market or (2) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change in thereof by any governmental authority charged with the interpretation or administration thereof or with any request or directive of any such governmental authority (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 interpretation 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 (in each case, after 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 law, regulation, treaty or regulation makes it unlawful, official directive or the interpretation or application thereof by any Governmental Authority asserts, after court or by any governmental authority charged with the date hereof, that it is unlawful, for 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 perform 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 deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, any Lender (other than such requirements as are already included in the determination of the Adjusted LIBOR Rate), or
(iii) imposes upon any Lender any other condition with respect to its obligations hereunder performance under this Agreement, and the result of any of the foregoing is to make Eurodollar Rate Loans increase the cost to such Lender, reduce the income receivable by such Lender or impose any expense upon such Lender with respect to fund or maintain Eurodollar Rate Loans hereunderany outstanding LIBOR Loans, such Lender shall notify the Agent Company thereof. The Borrowers, jointly and severally, agree to pay to such Lender the amount of such event 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 Lender of a statement in the Agent shall notify the Borrower of amount and setting forth such eventLender's calculation thereof, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan which statement shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, deemed true and the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, the Borrower shall also pay any amount due pursuant to SECTION 3.10correct absent manifest error.
(b) If the Agent shall, at least one Business Day before the date of any requested Revolving Credit Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for such Pending Loan, any subsequent Revolving Credit Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be made or continued as or converted into a Prime Rate Loan.
Appears in 1 contract
Sources: Credit Agreement (Brookstone Inc)