Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error. (b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance: (i) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (A) taxes imposed on or measured in whole or in part by its overall net income by (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws; (ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or (iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error. (c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension. (d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances: (i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or (ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. (e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of: (1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus (2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error. (f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 11 contracts
Samples: Credit Agreement (American States Water Co), Credit Agreement (American States Water Co), Credit Agreement (American States Water Co)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (A) taxes imposed on or measured in whole or in part by its overall net income by (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s 's affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s 's obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 4 contracts
Samples: Credit Agreement (American States Water Co), Credit Agreement (American States Water Co), Credit Agreement (American States Water Co)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar CircumstanceCircumstance shall:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes Note evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to of the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Note or its obligation to make Eurodollar Rate Advances, excluding excluding, with respect to each Lender, and any Affiliate or Eurodollar Lending Office thereof, (Ai) taxes imposed on or measured in whole or in part by its overall net income, gross income by or gross receipts or capital and franchise taxes imposed on it, (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (Bii) any withholding taxes or other taxes based on gross income imposed (other than withholding taxes and taxes based on gross income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by the United States of America any Governmental Agency) or (iii) any withholding taxes or other taxes based on gross income for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.2111.22, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, but excluding the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition materially affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesNote, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise materially affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Note or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Note or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by provided that such Lender makes demand upon Borrower (with a copy to the Administrative Agent)) within 90 days following the date upon which it becomes aware of any such event or circumstance, Borrower shall within five Business Days pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); . Borrower hereby indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within five Business Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions provided that Borrower shall not be obligated to pay for or contemplated herein, as a result of the existence or occurrence of any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demandSpecial Eurodollar Circumstance. A statement of any Lender claiming compensation under this subsection and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to this Section and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the judgment of such Lender, otherwise be materially disadvantageous to such Lender. If any Lender claims compensation under this Section, Borrower may at any time, upon at least four (4) Eurodollar Business Days' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee required by Section 3.8(d), pay in full the affected Eurodollar Rate Advances of such Lender or request that such Eurodollar Rate Advances be converted to Base Rate Advances. To the extent that any Lender which receives any payment from Borrower under this Section later receives any funds which are identifiable as a reimbursement or rebate of such amount from any other Person, such Lender shall promptly refund such amount to Borrower.
(cb) If, after the date hereof, If the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful unlawful, impossible or impossible impracticable for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality illegality, impossibility or impossibility impracticability and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances with Eurodollar Periods corresponding to the Eurodollar Loans of which such Eurodollar Rate Advances were a part on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(d). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this SectionSection 3.8(b), and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section 3.8(b) shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to specify a Base Rate Loan.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance Advance, (other than as the result of a conversion required under Section 3.1(d) or 3.8(b)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender within five (5) Banking Business Days after demand a prepayment fee or failure to borrow fee, as the case may be be, (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) principal amount of the amount, if any, by which (i) the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day quotient of the applicable Eurodollar Period exceeds (iiA) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on number of days between the date of the prepayment or failure to borrow borrow, as applicable, and ending on the last day of in the applicable Eurodollar Period Period, divided by (orB) 360, if no deposit rate quotation is available for such period, for times the most comparable period for which applicable Interest Differential (provided that the product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section 3.8(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 3 contracts
Samples: Revolving Loan Agreement (Mandalay Resort Group), Term Loan Agreement (Mandalay Resort Group), Capital Markets Term Loan Agreement (Mandalay Resort Group)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount unless such Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand (except to the extent of any retroactive application of the law, rule, regulation or guideline (or similar) giving rise to such demand)). Any The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of If any Special Eurodollar CircumstanceChange in Law:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding excluding, in each case, (A) taxes imposed on or measured in whole or in part by its overall net income by (1i) any jurisdiction Indemnified Taxes (or political subdivision thereofas to which Section 3.11 shall govern exclusively), and (ii) any Taxes described in which it is organized or maintains its principal office or Eurodollar Lending Office clause (a), (c) or (2d) any jurisdiction (or political subdivision thereof) in which it is of the definition of “doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable LawsExcluded Taxes”;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, compulsory loan, insurance charge, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount unless such Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand (except to the extent of any retroactive application of the law, rule, regulation or guideline (or similar) giving rise to such demand). A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error. If a Lender requests compensation pursuant to this Section 3.6(b), Borrower may replace such Lender or such Issuing Lender in accordance with Section 11.26.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance Lender shall, in the its good faith opinion of opinion, determine that any Lender, make Law has made it unlawful or impossible (or that any Governmental Agency has asserted that it is unlawful) for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan or to determine or charge interest rates based upon the Eurodollar Rate, or any Law or Governmental Agency has materially restrict restricted the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon and such Lender shall so notify the Eurodollar RateAgent, then (A) such Lender’s obligation to make or continue Eurodollar Rate Advances shall be suspended and (B) if such notice asserts the illegality of such Lender making or maintaining Alternate Base Rate Advances the interest rate on which is determined by reference to the Eurodollar Rate component of the Alternate Base Rate, the interest rate on which Alternate Base Rate Advances of such Lender, shall, if necessary to avoid such illegality, be determined by the Agent without reference to the Eurodollar Rate component of the Alternate Base Rate, in each case for the duration of such illegality or impossibility impossibility, and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, (I) the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances (the interest rate on which Alternate Base Rate Advances of such Lender shall, if necessary to avoid such illegality, be determined by the Agent without reference to the Eurodollar Rate component of the Alternate Base Rate) on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.6(e) and (II) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Agent shall during the period of such suspension compute the Alternate Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s If a Lender provides a notice pursuant to this Section 3.6(c), Borrower may replace such Lender or such Issuing Lender in accordance with Section 11.26. Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall thereafter promptly notify the Administrative Agent and Borrower of the any cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan or a conversion to or continuation thereof:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, (A) deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar PeriodPeriod or (B) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Eurodollar Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Alternate Base Rate Loan (in each case with respect to clause (A), “Impacted Loans”); or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, (x) the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended (to the extent of the affected Eurodollar Rate Loans or Eurodollar Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Alternate Base Rate, the utilization of the Eurodollar Rate component in determining the Alternate Base Rate shall be suspended, in each case until the Agent (upon the instruction of the Requisite Lenders) revokes such notice. Upon receipt of such notice, Borrower may revoke any pending request for a borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Eurodollar Periods) or, failing that, will be deemed to have converted such request into a request for a borrowing of Alternate Base Rate Loans in the amount specified therein. Notwithstanding the foregoing, if the Agent has made the determination described in clause (d)(1) of this Section, the Agent, in consultation with Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (i) the Agent revokes the notice delivered with respect to the Impacted Loans under this Section, (ii) the Requisite Lenders notify Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (iii) any Lender determines that any Law has made it unlawful, or that any Governmental Agency has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Agency has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Agent and Borrower written notice thereof.
(e) Upon conversion, payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.6(c)) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow make an Advance) to prepay, borrow, continue or convert on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan after such Request for Loan has become irrevocable, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such the Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(23) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section. If any Lender requests compensation pursuant to clause (a) or clause (b) of this Section, and or if any Lender gives a notice pursuant to clause (c) of this Section, such Lender agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation or would eliminate the need for the notice pursuant to clause (c) of this Section, as applicable, and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender. Borrower may replace such Lender by notifying such Lender, within five (5) Banking Days after demand of such Lender, of Borrower’s intention to replace such Lender and Borrower shall then replace such Lender by causing such Lender to assign its Commitments to one or more other then-existing Lenders or to another Eligible Assignee reasonably satisfactory to the Agent within forty-five (45) days after demand of such Xxxxxx.xx accordance with Section 11.26.
Appears in 3 contracts
Samples: Credit Agreement (Viasat Inc), Credit Agreement (Viasat Inc), Credit Agreement (Viasat Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar CircumstanceCircumstance shall:
(i) shall subject any Lender Certificate Purchaser or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Funding on a Eurodollar Rate Advancebasis (in each case, any of a "EURODOLLAR RATE INVESTMENT"), its Notes Certificate evidencing such Eurodollar Rate Advances Investments or its obligation to make Eurodollar Rate AdvancesInvestments, or shall change the basis of taxation of payments to any Lender attributable to Certificate Purchaser of the principal of or interest on any Eurodollar Rate Advance Investment or any other amounts due under this Agreement the Operative Documents or in respect of any Eurodollar Rate AdvanceInvestment, any of its Notes Certificate evidencing Eurodollar Rate Advances Investments or its obligation to make Eurodollar Rate AdvancesInvestments, excluding EXCLUDING, with respect to each Creditor, and any Affiliate or Eurodollar Office thereof, (A) taxes Taxes imposed on or measured in whole or in part by its overall net income, gross income by (1) any jurisdiction (or political subdivision thereof) in which it is organized gross receipts or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” capital and franchise taxes imposed on it, (B) any withholding taxes Taxes or other taxes Taxes based on gross income imposed (OTHER THAN withholding Taxes and Taxes based on gross income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by the United States of America any Governmental Agency) or (C) any withholding Taxes or other Taxes based on gross income for any period with respect to which it has failed to provide Borrower Lessee and Trustee with the appropriate form or forms required by Section 11.21SECTION 7.2(c), to the extent such forms are then required by applicable Applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including INCLUDING any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, BUT EXCLUDING the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Certificate Purchaser or its Eurodollar Lending Office); or
(iii) shall impose on any Lender Certificate Purchaser or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition materially affecting any Eurodollar Rate AdvanceInvestment, any of its Notes Certificate evidencing Eurodollar Rate AdvancesInvestments, its obligation to make Eurodollar Rate Advances Investments or this Agreementany of the Operative Documents, or shall otherwise materially affect any of the same; and the result of any of the foregoing, as determined in good faith by such LenderCertificate Purchaser, increases the cost to such Lender Certificate Purchaser or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance Investment or in respect of any Eurodollar Rate Advance, any of its Notes Certificate evidencing Eurodollar Rate Advances Investments or its obligation to make Eurodollar Rate Advances Investments or reduces the amount of any sum received or receivable by such Lender Certificate Purchaser or its Eurodollar Lending Office with respect to any Eurodollar Rate AdvanceInvestment, any of its Notes Certificate evidencing Eurodollar Rate Advances Investments or its obligation to make Eurodollar Rate Advances Investments (assuming such Lender’s Certificate Purchaser's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Investment in the Designated Eurodollar Market), then, PROVIDED THAT such Certificate Purchaser makes demand upon Lessee (with a copy to Trustee within ninety (90) days following the date upon which it becomes aware of any such event or circumstance, Lessee shall within five (5) Banking Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender Certificate Purchaser such additional amount or amounts as will compensate such Lender Certificate Purchaser for such increased cost or reduction (determined as though such Lender’s Certificate Purchaser's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Investment in the Designated Eurodollar Market); . Xxxxxx hereby indemnifies each Certificate Purchaser against, and agrees to hold each Certificate Purchaser harmless from and reimburse such Certificate Purchaser within five (5) Business Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by each Certificate Purchaser in connection with the Operative Documents, or any of the rights, obligations or transactions provided that Borrower shall not be obligated to pay for or contemplated herein, as a result of the existence or occurrence of any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demandSpecial Eurodollar Circumstance. A statement of any Lender Certificate Purchaser claiming compensation under this subsection and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Certificate Purchaser agrees to endeavor promptly to notify Lessee of any event of which it has Actual Knowledge, occurring after the Closing Date, which will entitle such Certificate Purchaser to compensation pursuant to this Section and agrees to designate a different Eurodollar Office if such designation will avoid the need for or reduce the amount of such compensa tion and will not, in the judgment of such Certificate Purchaser, otherwise be materially disadvantageous to such Certificate Purchaser. If any Certificate Purchaser claims compensation under this Section, Lessee may at any time, upon at least four (4) Business Days' prior notice to Trustee and such Certificate Purchaser and upon payment in full of the amounts provided for in this Section through the date of such payment PLUS any prepayment fee required by SECTION 7.7(d), pay in full the affected Eurodollar Rate Investments of such Certificate Purchaser or request that such Eurodollar Rate Investments be converted to investments based on the Base Rate (each, a "BASE RATE INVESTMENT"). To the extent that any Certificate Purchaser which receives any payment from Lessee under this Section later receives any funds which are identifiable as a reimbursement or rebate of such amount from any other Person, such Certificate Purchaser shall promptly refund such amount to Lessee.
(cb) If, after the date hereof, If the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any LenderCertificate Purchaser, make it unlawful unlawful, impossible or impossible impracticable for such Lender Certificate Purchaser or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesInvestment, or materially restrict the authority of such Lender Certificate Purchaser to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Certificate Purchaser shall so notify Trustee, then such Lender’s Certificate Purchaser's obligation to make Eurodollar Rate Advances Investments shall be suspended for the duration of such illegality illegality, impossibility or impossibility impracticability and the Administrative Agent Trustee forthwith shall give notice thereof to the other Lenders Certificate Purchasers, Administrative Agent and BorrowerLessee. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Certificate Purchaser's Eurodollar Rate AdvancesInvestments, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances Investments on either (i) the last day of the Eurodollar Period(s) Rent Period applicable to such Eurodollar Rate Advances Investments if such Lender Certificate Purchaser may lawfully continue to maintain and fund such Eurodollar Rate Advances Investments to such day(s) or (ii) immediately if such Lender Certificate Purchaser may not lawfully continue to fund and maintain such Eurodollar Rate Advances Investments to such day(s), PROVIDED that in such event the conversion shall not be subject to payment of a prepayment fee under SECTION 7.7(d). Each Lender Certificate Purchaser agrees to endeavor promptly to notify Borrower Lessee of any event of which it has actual knowledgeActual Knowledge, occurring after the Closing Date, which will cause such Lender that Certificate Purchaser to notify Borrower as set forth in the first sentence of Trustee under this SectionSECTION 7.7(b), and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderCertificate Purchaser, otherwise be materially disadvantageous to such LenderCertificate Purchaser. In the event that any Lender Certificate Purchaser is unable, for the reasons set forth above, to make, maintain or fund its portion of any Funding as a Eurodollar Rate AdvanceInvestment, such Lender Certificate Purchaser shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance Investment for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate AdvanceInvestment. In the event that any Lender’s Any Certificate Purchaser whose obligation to make Eurodollar Rate Advances Investments has been suspended under this Section, such Lender SECTION 7.7(b) shall promptly notify the Administrative Agent Trustee and Borrower Lessee of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesFunding:
(i1) the Administrative Agent Required Certificate Purchasers reasonably determines determine that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersCertificate Purchasers, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Certificate Purchaser that is a commercial bank in the Designated Eurodollar Market for the applicable Eurodollar Rent Period; or
(ii2) the Requisite Lenders Required Certificate Purchasers advise the Administrative Agent Trustee that the Eurodollar Rate as determined by the Administrative Agent Trustee (Ai) does not represent the effective pricing to such Lenders Certificate Purchasers for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar applic able Rent Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Certificate Purchasers of making the applicable Eurodollar Rate AdvancesInvestments; then the Administrative Agent Trustee forthwith shall give notice thereof to Borrower Lessee, Trustee and the LendersCertificate Purchasers, whereupon until the Administrative Agent Trustee notifies Borrower Lessee that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Certificate Purchasers to make any future Eurodollar Rate Advances Investments shall be suspended.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance Investment, (OTHER THAN as the result of a conversion required under SECTION 7.7(b)), on a day other than the last day in the applicable Eurodollar Rent Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), ) or upon the failure if delivery of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow Equipment is not made on the date or in the amount Delivery Date specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for BorrowingDelivery Date Notice delivered by Lessee, Borrower Lessee shall pay to the appropriate Lender Certificate Purchaser that has made a Funding with respect thereto within five (5) Banking Business Days after demand a prepayment fee or a failure to borrow fund fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance Funding had been funded made in the Designated Eurodollar Market) equal to the sum SUM of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the principal amount prepaid or not borrowed at of the Eurodollar Rate plus Investment prepaid (or not funded, as the Applicable Eurodollar Rate Margin if that amount had remained case may be) TIMES the quotient of (A) the number of days between the date of prepayment (or been outstanding through failure to fund, as applicable) and the last day in the applicable Rent Period, DIVIDED BY (B) 360, TIMES the applicable Interest Differential (PROVIDED that the product of the applicable Eurodollar Period exceeds foregoing formula must be a positive number); PLUS
(ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender the Certificate Purchaser reasonably attributable to such payment, prepayment payment or failure to borrowprepayment. Each Lender’s Certificate Purchaser's determination of the amount of any prepayment fee payable under this Section SECTION 7.7(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Samples: Lease Intended as Security (Circus Circus Enterprises Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount unless such Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand (except to the extent of any retroactive application of the law, rule, regulation or guideline (or similar) giving rise to such demand)). Any The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1a) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2b) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount unless such Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection subSection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s). Each Lender agrees , provided that in such event the conversion shall not be subject to endeavor promptly to notify Borrower payment of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.3.6
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar CircumstanceCircumstance shall:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to of the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding EXCLUDING, with respect to each Creditor, and any Affiliate or Eurodollar Lending Office thereof, (Ai) taxes imposed on or measured in whole or in part by its overall net income by or capital and franchise taxes imposed on it, (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (Bii) any withholding taxes or other taxes based on gross net income imposed (other than withholding taxes and taxes based on net income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by the United States of America any Governmental Agency) or (iii) any withholding taxes or other taxes based on net income for any period with respect to which it has failed to provide Borrower Borrowers with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including INCLUDING, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, but excluding the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition materially affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise materially affect any of the same; 37 and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by PROVIDED THAT such Lender makes demand upon Borrowers (with a copy to the Administrative Agent)) within 90 days following the date upon which it becomes aware of any such event or circumstance, Borrower Borrowers shall within five Business Days pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); . Each of the Borrowers hereby jointly and severally (but as between Borrowers, ratably) indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within five Business Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions provided that Borrower shall not be obligated to pay for or contemplated herein, as a result of the existence or occurrence of any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demandSpecial Eurodollar Circumstance. A statement of any Lender claiming compensation under this subsection clause and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Lender agrees to endeavor promptly to notify Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to this Section and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the judgment of such Lender, otherwise be materially disadvantageous to such Lender. If any Lender claims compensation under this Section, Borrowers may at any time, upon at least four Eurodollar Business Days' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee required by Section 3.8(d), pay in full the affected Eurodollar Rate Advances of such Lender or request that such Eurodollar Rate Advances be converted to Base Rate Advances. To the extent that any Lender which receives any payment from Borrowers under this Section later receives any funds which are identifiable as a reimbursement or rebate of such amount from any other Person, such Lender shall promptly refund such amount to Borrowers.
(cb) If, after the date hereof, If the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful unlawful, impossible or impossible impracticable for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality illegality, impossibility or impossibility impracticability and the Administrative Agent forthwith shall give notice thereof to the other Lenders and BorrowerBorrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), PROVIDED that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(d). Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this SectionSection 3.8(b), and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section 3.8(b) shall promptly notify the Administrative Agent and Borrower Borrowers of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower Borrowers and the Lenders, whereupon until the Administrative Agent notifies Borrower Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to specify a Base Rate Loan.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance Advance, (OTHER THAN as the result of a conversion required under Section 3.1(d) or 3.8(b)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of any Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of 39 Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower Borrowers shall pay to the appropriate Lender within five (5) Banking Business Days after demand a prepayment fee or failure to borrow fee, as the case may be be, (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum SUM of:
(1) principal amount of the amount, if any, by which (i) the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, TIMES the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day quotient of the applicable Eurodollar Period exceeds (iiA) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on number of days between the date of the prepayment or failure to borrow borrow, as applicable, and ending on the last day of in the applicable Eurodollar Period Period, DIVIDED BY (orB) 360, if no deposit rate quotation is available for such period, for TIMES the most comparable period for which applicable Interest Differential (provided that the product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plusPLUS
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section 3.8(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar CircumstanceCircumstance shall:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to of the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding EXCLUDING, with respect to each Creditor, and any Affiliate or Eurodollar Lending Office thereof, (Ai) taxes imposed on or measured in whole or in part by its overall net income by or capital and franchise taxes imposed on it, (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (Bii) any withholding taxes or other taxes based on gross net income imposed (other than withholding taxes and taxes based on net income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by the United States of America any Governmental Agency) or (iii) any withholding taxes or other taxes based on net income for any period with respect to which it has failed to provide Borrower Borrowers with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including INCLUDING, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, BUT EXCLUDING the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition materially affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesNotes, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise materially affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by PROVIDED THAT such Lender makes demand upon Borrowers (with a copy to the Administrative Agent)) within 90 days following the date upon which it becomes aware of any such event or circumstance, Borrower Borrowers shall within five Business Days pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); . Each of the Borrowers hereby jointly and severally (but as between Borrowers, ratably) indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within five Business Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions provided that Borrower shall not be obligated to pay for or contemplated herein, as a result of the existence or occurrence of any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demandSpecial Eurodollar Circumstance. A statement of any Lender claiming compensation under this subsection clause and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Lender agrees to endeavor promptly to notify Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to this Section and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the judgment of such Lender, otherwise be materially disadvantageous to such Lender. If any Lender claims compensation under this Section, Borrowers may at any time, upon at least four Eurodollar Business Days' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment PLUS any prepayment fee required by Section 3.7(d), pay in full the affected Eurodollar Rate Advances of such Lender or request that such Eurodollar Rate Advances be converted to Base Rate Advances. To the extent that any Lender which receives any payment from Borrowers under this Section later receives any funds which are identifiable as a reimbursement or rebate of such amount from any other Person, such Lender shall promptly refund such amount to Borrowers.
(cb) If, after the date hereof, If the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful unlawful, impossible or impossible impracticable for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality illegality, impossibility or impossibility impracticability and the Administrative Agent forthwith shall give notice thereof to the other Lenders and BorrowerBorrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), PROVIDED that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.7(d). Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this SectionSection 3.7(b), and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section 3.7(b) shall promptly notify the Administrative Agent and Borrower Borrowers of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower Borrowers and the Lenders, whereupon until the Administrative Agent notifies Borrower Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to specify a Base Rate Loan.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance Advance, (OTHER than as the result of a conversion required under Section 3.1(d) or 3.7(b)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of any Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower Borrowers shall pay to the appropriate Lender within five (5) Banking Business Days after demand a prepayment fee or failure to borrow fee, as the case may be be, (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum SUM of:
(1) principal amount of the amount, if any, by which (i) the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, TIMES the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day quotient of the applicable Eurodollar Period exceeds (iiA) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on number of days between the date of the prepayment or failure to borrow borrow, as applicable, and ending on the last day of in the applicable Eurodollar Period Period, DIVIDED BY (orB) 360, if no deposit rate quotation is available for such period, for times the most comparable period for which applicable Interest Differential (PROVIDED that the product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plusPLUS
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section 3.7(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (A) taxes imposed on or measured in whole or in part by its overall net income by (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.6(e). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.6(c)) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan after such Request for Loan has become irrevocable, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin two and one-half percentage points (250 basis points) if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such the Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(23) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender. Borrower shall not be obligated to pay any such compensation to a Lender under this Section if, within five (5) Banking Days after receiving notice from such Lender requesting such compensation, Borrower notifies such Lender of Borrower's intention to repay all Obligations then owing to such Lender and to terminate the Commitments of such Lender, and if Borrower in fact repays such Obligations and terminates such Commitments within thirty (30) days after Borrower receipt of such Lender's notice requesting compensation.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand)requirements. Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts and franchise taxes imposed on it, by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” ,"
(ii) any withholding taxes or other taxes based on gross income imposed by the United States of America (other than withholding taxes and taxes based on gross income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by any Governmental Agency) and (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Samples: Term Loan Agreement (Aztar Corp)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower Borrowers shall pay that Lender within five (5) days Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower Borrowers shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety days preceding the date of such demand). Any The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate AdvancesAdvances (provided, that Borrowers shall not be obligated to pay any such amount which arose prior to the date which is ninety days preceding the date of such demand or is attributable to periods prior to the date which is ninety days preceding the date of such demand), excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower Borrowers with the appropriate form or forms required by Section 11.2112.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and BorrowerBorrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.7(e). Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower Borrowers of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower Borrowers and the Lenders, whereupon until the Administrative Agent notifies Borrower Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.7(c)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower Borrowers (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to make an Advance or the suspension of any Lender’s obligation to make or maintain Eurodollar Loans under Section 3.7) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower Borrowers shall pay to the appropriate Lender within five (5) Banking ten Business Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times [the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day number of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on days from and including the date of the prepayment or failure to borrow and ending on borrow, as applicable, to but excluding the last day of in the applicable Eurodollar Period Period, divided by 360], times the applicable Interest Differential (or, if no deposit rate quotation is available for such period, for provided that the most comparable period for which product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from BorrowerBorrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Samples: Loan Agreement (Station Casinos Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount unless such Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand (except to the extent of any retroactive application of the law, rule, regulation or guideline (or similar) giving rise to such demand)). Any The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of If any Special Eurodollar CircumstanceChange in Law:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding excluding, in each case, (A) taxes imposed on or measured in whole or in part by its overall net income by (1i) any jurisdiction Indemnified Taxes (or political subdivision thereofas to which Section 3.11 shall govern exclusively), and (ii) any Taxes described in which it is organized or maintains its principal office or Eurodollar Lending Office clause (a), (c) or (2d) any jurisdiction (or political subdivision thereof) in which it is of the definition of “doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable LawsExcluded Taxes”;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, compulsory loan, insurance charge, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount unless such Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand (except to the extent of any retroactive application of the law, rule, regulation or guideline (or similar) giving rise to such demand). A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error. If a Lender requests compensation pursuant to this Section 3.6(b), Borrower may replace such Lender or such Issuing Lender in accordance with Section 11.26.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance Lender shall, in the its good faith opinion of opinion, determine that any Lender, make Law has made it unlawful or impossible (or that any Governmental Agency has asserted that it is unlawful) for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan or to determine or charge interest rates based upon the Eurodollar Rate, or any Law or Governmental Agency has materially restrict restricted the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon and such Lender shall so notify the Eurodollar RateAgent, then (A) such Lender’s obligation to make or continue Eurodollar Rate Advances shall be suspended and (B) if such notice asserts the illegality of such Lender making or maintaining Alternate Base Rate Advances the interest rate on which is determined by reference to the Eurodollar Rate component of the Alternate Base Rate, the interest rate on which Alternate Base Rate Advances of such Lender, shall, if necessary to avoid such illegality, be determined by the Agent without reference to the Eurodollar Rate component of the Alternate Base Rate, in each case for the duration of such illegality or impossibility impossibility, and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, (I) the outstanding principal amount of such LenderXxxxxx’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances (the interest rate on which Alternate Base Rate Advances of such Lender shall, if necessary to avoid such illegality, be determined by the Agent without reference to the Eurodollar Rate component of the Alternate Base Rate) on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.6(e) and (II) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Agent shall during the period of such suspension compute the Alternate Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s If a Lender provides a notice pursuant to this Section 3.6(c), Borrower may replace such Lender or such Issuing Lender in accordance with Section 11.26. Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall thereafter promptly notify the Administrative Agent and Borrower of the any cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan or a conversion to or continuation thereof:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, (A) deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar PeriodPeriod or (B) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Eurodollar Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Alternate Base Rate Loan (in each case with respect to clause (A), “Impacted Loans”); or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, (x) the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended (to the extent of the affected Eurodollar Rate Loans or Eurodollar Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Alternate Base Rate, the utilization of the Eurodollar Rate component in determining the Alternate Base Rate shall be suspended, in each case until the Agent (upon the instruction of the Requisite Lenders) revokes such notice. Upon receipt of such notice, Borrower may revoke any pending request for a borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Eurodollar Periods) or, failing that, will be deemed to have converted such request into a request for a borrowing of Alternate Base Rate Loans in the amount specified therein. Notwithstanding the foregoing, if the Agent has made the determination described in clause (d)(1) of this Section, the Agent, in consultation with Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (i) the Agent revokes the notice delivered with respect to the Impacted Loans under this Section, (ii) the Requisite Lenders notify Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (iii) any Lender determines that any Law has made it unlawful, or that any Governmental Agency has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Agency has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Agent and Borrower written notice thereof.
(e) Upon conversion, payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.6(c)) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow make an Advance) to prepay, borrow, continue or convert on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan after such Request for Loan has become irrevocable, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such the Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(23) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section. If any Lender requests compensation pursuant to clause (a) or clause (b) of this Section, and or if any Lender gives a notice pursuant to clause (c) of this Section, such Lender agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation or would eliminate the need for the notice pursuant to clause (c) of this Section, as applicable, and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender. Borrower may replace such Lender by notifying such Lender, within five (5) Banking Days after demand of such Lender, of Borrower’s intention to replace such Lender and Borrower shall then replace such Lender by causing such Lender to assign its Commitments to one or more other then-existing Lenders or to another Eligible Assignee reasonably satisfactory to the Agent within forty-five (45) days after demand of such Xxxxxx.xx accordance with Section 11.26.
Appears in 1 contract
Samples: Credit Agreement (Viasat Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender Bank any reserve or comparable requirement (including any emergency, --------- supplemental or other reserve) with respect to the Eurodollar Obligations of that LenderBank, other than Borrower or the Eurodollar Reserve Percentage, relevant Co-Borrower shall pay that Lender Bank within five (5) days Banking Days after demand all amounts necessary to compensate such Lender Bank (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand)requirements. Any Lender’s The Bank's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender Bank attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes --------- imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” ," and (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by available under applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any --------- reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender Bank or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Desig nated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender Bank claiming compensation under this subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful or impossible for such Lender Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, Advance or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank shall so notify the Administrative Agent, then such Lender’s Bank's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders Banks and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Bank's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender Bank may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender Bank may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event -------- the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender that Bank to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan or Advance, such Lender Bank shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Bank whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Bank in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders Banks advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the LendersBanks, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Banks to make any future Eurodollar Rate Advances shall be suspendedsuspended unless (but only if clause (2) above is the basis for such ------ suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced Eurodollar Margin with respect to all Eurodollar Rate Loans made during such period.
(e1) Upon payment or prepayment the principal amount of any the Eurodollar Rate Advance on a day other than prepaid or not borrowed or prepaid, as the case may be, times [the ----- number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Eurodollar Period Period], divided by 360, times the applicable ------- ----- Interest Differential (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon provided that the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% product of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for foregoing -------- formula must be a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtainedpositive number); plus
plus (2) all out-of-pocket expenses incurred by such Lender the Bank reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s Bank's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender Bank to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. Any request for compensation by a Lender Bank under this Section shall set forth the basis upon which it has been determined that such an amount is due from BorrowerBorrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Bank.
(g) If any Bank claims compensation or is excused from making or continuing Eurodollar Rate Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four (4) Eurodollar Banking Days' prior notice to the Administrative Agent and such LenderBank and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) ---- required by clause (e) of this Section, pay in full the affected Eurodollar Rate Advances of such Bank or request that such Eurodollar Rate Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Bank, that Bank will be subject to removal in accordance with Section 11.27; provided that Borrower and the Co-Borrowers shall have paid -------- such amount to that Bank and that Borrower and the Co-Borrowers, within the thirty (30) day period following the date of such payment, shall have notified that Bank in writing of their intent to so remove the Bank.
Appears in 1 contract
Samples: Loan Agreement (MGM Grand Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender Bank any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that LenderBank, other than Borrower or the Eurodollar Reserve Percentage, relevant Co-Borrower shall pay that Lender Bank within five (5) days Banking Days after demand all amounts necessary to compensate such Lender Bank (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand)requirements. Any Lender’s The Bank's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender Bank attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” ," and (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by available under applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender Bank or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender Bank claiming compensation under this subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful or impossible for such Lender Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, Advance or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank shall so notify the Administrative Agent, then such Lender’s Bank's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders Banks and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Bank's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender Bank may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender Bank may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender that Bank to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan or Advance, such Lender Bank shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Bank whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Bank in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders Banks advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the LendersBanks, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Banks to make any future Eurodollar Rate Advances shall be suspendedsuspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced Eurodollar Margin with respect to all Eurodollar Rate Loans made during such period.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant Bank to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Advance in any Request for BorrowingLoan, or upon the failure of Borrower or any Co-Borrower to prepay a Eurodollar Rate Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender Bank within five (5) ten Banking Days after demand a prepayment fee, failure to borrow fee or failure to borrow prepay fee, as the case may be (determined as though 100% of the that Bank's Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) ), equal to the sum of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at or prepaid, as the Eurodollar Rate plus case may be, times [the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day number of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on days from and including the date of the prepayment or failure to borrow and ending on or prepay, as applicable, to but excluding the last day of in the applicable Eurodollar Period Period] divided by 360 times the applicable Interest Differential (or, if no deposit rate quotation is available for such period, for provided that the most comparable period for which product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-pocket expenses incurred by such Lender the Bank reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s Bank's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender Bank to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. Any request for compensation by a Lender Bank under this Section shall set forth the basis upon which it has been determined that such an amount is due from BorrowerBorrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Bank.
(g) If any Bank claims compensation or is excused from making or continuing Eurodollar Rate Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Eurodollar Banking Days' prior notice to the Administrative Agent and such LenderBank and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected Eurodollar Rate Advances of such Bank or request that such Eurodollar Rate Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Bank, that Bank will be subject to removal in accordance with Section 11.26; provided that Borrower and the Co-Borrowers shall have paid such amount to that Bank and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Bank in writing of their intent to so remove the Bank.
Appears in 1 contract
Samples: 364 Day Loan Agreement (MGM Mirage)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount unless such Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount unless such Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s). Each Lender agrees , provided that in such event the conversion shall not be subject to endeavor promptly to notify Borrower payment of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.3.6
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower Borrowers shall pay that Lender within five (5) days Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower Borrowers shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate AdvancesAdvances (provided, that Borrowers shall not be obligated to pay any such amount which arose prior to the date which is ninety days preceding the date of such demand or is attributable to periods prior to the date which is ninety days preceding the date of such demand), excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower Borrowers with the appropriate form or forms required by Section 11.2112.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and BorrowerBorrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.7(e). Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower Borrowers of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower Borrowers and the Lenders, whereupon until the Administrative Agent notifies Borrower Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.7(c)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower Borrowers (for a reason other than the breach by a Lender of its obligation pursuant to Sections 2.1(a) or 2.1(b) to make an Advance or the suspension of any Lender's obligation to make or maintain Eurodollar Loans under Section 2.1(a)3.7) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower Borrowers shall pay to the appropriate Lender within five (5) Banking ten Business Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times [the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day number of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on days from and including the date of the prepayment or failure to borrow and ending on borrow, as applicable, to but excluding the last day of in the applicable Eurodollar Period Period], divided by 360, times the applicable Interest Differential (or, if no deposit rate quotation is available for such period, for provided that the most comparable period for which product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from BorrowerBorrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Samples: Loan Agreement (Station Casinos Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower Borrowers shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower Borrowers shall not be obligated to pay any such amount which arose prior to the date which is 180 days one year preceding the date of such demand or is attributable to periods prior to the date which is 180 days one year preceding the date of such demand). Any The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower Representative with the appropriate form or forms required by Section 11.2112.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided provided, that Borrower Borrowers shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and BorrowerBorrower Representative. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.6(e). Each Lender agrees to endeavor promptly to notify Borrower Representative of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to take such action (including to designate a different Eurodollar Lending Office Office) if such action or designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower Representative of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower Representative and the Lenders, whereupon until the Administrative Agent notifies Borrower Representative that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on (other than as the result of a conversion required under Section 3.6(c))on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower Borrowers (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower Borrowers shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such the Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(23) all out-of-out of pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower Representative of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to take such action (including to designate a different Eurodollar Lending Office Office) if such action or designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from BorrowerBorrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
(g) Upon the receipt by any Borrower from any Lender (an “Affected Lender”) of a claim for compensation under Section 3.5, 3.6(a) or 3.6(b), or if any Borrower is required to pay any amount to any Affected Lender or the Administrative Agent for the account of an Affected Lender pursuant to Section 3.5, 3.6(a) or 3.6(b), or such Affected Lender has notified Administrative Agent pursuant to Section 3.6(c) that such Affected Lender is unable to make Eurodollar Rate Loans and, in each case (if applicable), such Affected Lender has not changed the jurisdiction of its Eurodollar Lending Office so as to eliminate such additional payment by the Borrowers within 30 days after a request by the Borrowers to effect such change, the Borrowers may: (i) request the Affected Lender to use its best efforts to obtain a replacement bank or financial institution satisfactory to the Borrower Representative (which shall, in any event, be an Eligible Assignee) to acquire and assume all or a ratable part of all of such Affected Lender Loans and Revolving Commitment (a “Replacement Lender”); (ii) request one or more of the other Lenders to acquire and assume all or part of such Affected Lender’s Loans and Revolving Commitment; or (iii) designate a Replacement Lender. Any such designation of a Replacement Lender under clause (i) or (iii) or of an existing Lender under clause (ii) shall be subject to the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed), and shall be effected in accordance with all requirements for an assignment set forth in Section 12.8. Without limiting the generality of the foregoing, the Borrowers agree to pay to each Affected Lender any amounts arising under Section 3.6(e) by virtue of such Affected Lender’s replacement on a date other than the last day of an Interest Period, with respect to any Eurodollar Rate Loans then outstanding.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations liabilities or assets consisting of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay or including Eurocurrency funds or deposits (currently known as “Euro liabilities”) of that Lender within five (5) days Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar LIBOR Lending Office had funded 100% of its Eurodollar Rate Advances LIBOR Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety days preceding the date of such demand). Any The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar LIBOR Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate LIBOR Advance, any of its Notes evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate LIBOR Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate LIBOR Advance, any of its Notes evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate AdvancesLIBOR Advances (provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety days preceding the date of such demand or is attributable to periods prior to the date which is ninety days preceding the date of such demand), excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar LIBOR Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.2112.21, to the extent such forms are then required by applicable Laws;
(ii2) without duplication as to Section 3.8(a), shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar LIBOR Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar LIBOR Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate LIBOR Advance, any of its Notes evidencing Eurodollar Rate AdvancesLIBOR Loans, its obligation to make Eurodollar Rate LIBOR Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar LIBOR Lending Office of making or maintaining any Eurodollar Rate LIBOR Advance or in respect of any Eurodollar Rate LIBOR Advance, any of its Notes evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar LIBOR Lending Office with respect to any Eurodollar Rate LIBOR Advance, any of its Notes evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate LIBOR Advances (assuming such Lender’s Eurodollar LIBOR Lending Office had funded 100% of its Eurodollar Rate Advances LIBOR Advance in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar LIBOR Lending Office had funded 100% of its Eurodollar Rate Advances LIBOR Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar LIBOR Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLIBOR Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make Eurodollar Rate LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Interest Period(s) applicable to such Eurodollar Rate LIBOR Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate LIBOR Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate LIBOR Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(e). Each Lender agrees to endeavor promptly to notify Borrower of any event occurring after the Closing Date of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLIBOR Loan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate LIBOR Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLIBOR Loan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Interest Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Interest Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate LIBOR Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate LIBOR Advance (other than as the result of a conversion required under Section 3.8(c)), on a day other than the last day in the applicable Eurodollar Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Sections 2.1(a) and (b) to make an Advance or the suspension of any Lender’s obligation to make or maintain LIBOR Loans under Section 2.1(a)3.8) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances LIBOR Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender within five (5) Banking ten Business Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate LIBOR Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount LIBOR Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day sum of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on number of days from and including the date of the prepayment or failure to borrow and ending on borrow, as applicable, to but excluding the last day in the applicable Interest Period, divided by 360, times the applicable Interest Differential (provided that the product of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this SectionSection 3.8, and agrees to designate a different Eurodollar LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section 3.8 shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Samples: Loan Agreement (Station Casinos Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Samples: Reducing Revolving Loan Agreement (American Coin Merchandising Trust Iv)
Eurodollar Costs and Related Matters. (a) 14.1.1 In the event that any Governmental Agency Authority imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations liabilities (as defined in Regulation D or any comparable regulation of that any Governmental Authority having jurisdiction over any Lender, other than the Eurodollar Reserve Percentage) of any Lender, Borrower shall pay that Lender such lender within five (5) days Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lenderlender’s Eurodollar Lending Office LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any Such Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) 14.1.2 If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(ia) shall subject any Lender or its Eurodollar Lending Office LIBOR lending office to any taxTax, duty or other charge or cost with respect to any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate AdvancesLIBOR Loans, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance LIBOR Loan or any other amounts due under this Agreement in respect of any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate AdvancesLIBOR Loans, excluding (A) taxes Taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office LIBOR lending office or (2B) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws”;
(iib) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending OfficeLIBOR lending office); or
(iiic) shall impose on any Lender or its Eurodollar Lending Office LIBOR lending office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advancessuch LIBOR Loan(s), its obligation to make Eurodollar Rate Advances LIBOR Loans or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such any Lender, increases the cost to such any Lender or its Eurodollar Lending Office LIBOR lending office of making or maintaining any Eurodollar Rate Advance LIBOR Loan or in respect of any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate Advances LIBOR Loans or reduces the amount of any sum received or receivable by such any Lender or its Eurodollar Lending Office LIBOR lending office with respect to any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate Advances LIBOR Loans (assuming such Lender’s Eurodollar Lending Office LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market); provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) 14.1.3 If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office LIBOR lending office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLIBOR Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar RateLIBOR Basis, and Lender shall so notify Agent, then such Lender’s obligation to make Eurodollar Rate Advances LIBOR Loans shall be suspended for the duration of such illegality or impossibility and the Administrative Agent Lender forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate AdvancesLIBOR Loans, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances Loans on either (i1) the last day of the Eurodollar LIBOR Loan Period(s) applicable to such Eurodollar Rate Advances LIBOR Loans if such Lender lender may lawfully continue to maintain and fund such Eurodollar Rate Advances LIBOR Loans to such day(s) or (ii2) immediately if such Lender lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances LIBOR Loans to such day(s). Each Lender agrees , provided that in such event the conversion shall not be subject to endeavor promptly to notify Borrower payment of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(under Section 2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding -38- 45 the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.6(e). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.6(c) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan after such Request for Loan has become irrevocable, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such the Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(23) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender. Borrower shall not be obligated to pay any such compensation to a Lender under this Section if, within five (5) Banking Days after receiving notice from such Lender requesting such compensation, Borrower notifies such Lender of Borrower's intention to repay all Obligations then owing to such Lender and to terminate the Commitments of such Lender, and if Borrower in fact repays such Obligations and terminates such Commitments within thirty (30) days after Borrower receipt of such Lender's notice requesting compensation.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including INCLUDING any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided PROVIDED, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes Note evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes Note evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate AdvancesAdvances (PROVIDED, excluding that Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety (A90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand), EXCLUDING (i) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.2112.21, to the extent such forms are then required by available under applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including INCLUDING any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes Note evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes Note evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes Note evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Managing Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Managing Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Managing Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), PROVIDED that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Managing Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Managing Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Managing Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Managing Agent that the Eurodollar Rate as determined by the Administrative Managing Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Managing Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Managing Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. Upon delivery by the Managing Agent to Borrower of notice that the circumstances giving rise to such suspension no longer exist, any Alternate Base Rate Loan into which a Eurodollar Rate Loan may have been converted as a result of any such suspension shall be converted into a Eurodollar Rate Loan or Eurodollar Rate Loans of one, two and/or three month Eurodollar Periods so as (and on such dates as) to permit the outstanding Loans to be Eurodollar Rate Loans of such Eurodollar Periods and commencing on such Eurodollar Period Commencement Dates as would have existed if such conversions had not occurred.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (OTHER THAN as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for to prepay a reason other than Eurodollar Rate Loan on the breach by date specified in a Lender notice of its obligation prepayment delivered to the Managing Agent pursuant to Section 2.1(a3.1(g)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five ten (510) Banking Days after demand a prepayment fee or failure to borrow prepay fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) ), equal to the sum ofSUM OF:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at prepaid, as the Eurodollar Rate plus case may be, TIMES the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day number of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on days from and including the date of the prepayment or failure to borrow and ending on prepay, as applicable, to but excluding the last day of in the applicable Eurodollar Period Period, DIVIDED BY 360, TIMES the applicable Interest Differential (or, if no deposit rate quotation is available for such period, for PROVIDED that the most comparable period for which product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plusPLUS
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrowprepay. Each Lender’s 's determination of the amount of any prepayment fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower Borrowers shall pay that Lender within five (5) days Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower Borrowers shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate AdvancesAdvances (provided, that Borrowers shall not be obligated to pay any such amount which arose prior to the date which is ninety days preceding the date of such demand or is attributable to periods prior to the date which is ninety days preceding the date of such demand), excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower Borrowers with the appropriate form or forms required by Section 11.2112.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and BorrowerBorrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.7(e). Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower Borrowers of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower Borrowers and the Lenders, whereupon until the Administrative Agent notifies Borrower Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.7(c)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower Borrowers (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to make an Advance or the suspension of any Lender's obligation to make or maintain Eurodollar Loans under Section 3.7) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower Borrowers shall pay to the appropriate Lender within five (5) Banking ten Business Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times [the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day number of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on days from and including the date of the prepayment or failure to borrow and ending on borrow, as applicable, to but excluding the last day of in the applicable Eurodollar Period Period, divided by 360], times the applicable Interest Differential (or, if no deposit rate quotation is available for such period, for provided that the most comparable period for which product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from BorrowerBorrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Samples: Loan Agreement (Station Casinos Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount unless such Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand (except to the extent of any retroactive application of the law, rule, regulation or guideline (or similar) giving rise to such demand)). Any The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1a) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2b) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount unless such Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.6(e). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In Borrower shall have the event that any Lender’s right to replace such Lender by causing such Lender to assign its Commitments to one or more other then-existing Lenders or to another Eligible Assignee reasonably satisfactory to the Administrative Agent and the other then-existing Lenders. Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice nonce thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.6(c)) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan after such Request for Loan has become irrevocable, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such the Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(23) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender. Borrower may replace such Lender by notifying such Lender, within five (5) Banking Days after demand of such Lender, of Borrower’s intention to replace such Lender and Borrower shall then replace such Lender by causing such Lender to assign its Commitments to one or more other then-existing Lenders or to another Eligible Assignee reasonably satisfactory to the Administrative Agent and the other then-existing Lenders within forty-five (45) days after demand of such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower Borrowers shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower Borrowers shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate AdvancesAdvances (provided, that Borrowers shall not be obligated to pay any such amount which arose prior to the date which is ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand), excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower Borrowers with the appropriate form or forms required by Section 11.2114.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and BorrowerBorrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.7(e). Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Amendment Effective Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower Borrowers of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) Notwithstanding any other provision of this Agreement, (i) all references to "Lender" in this Section 3.7 shall include the Term Lenders and (ii) all references to Eurodollar Rate Advances shall include Eurodollar Rate Advances made in connection with the Term Loan (each a "Term Loan Advance"). Any Term Loan Advance, together with accrued interest thereon, that is converted to an Alternate Base Rate Advance pursuant to Sections 3.7(c) or 3.7(e), shall (A) bear interest at a rate per annum equal to the Alternate Base Rate plus one and one-quarter percent (1.25%) and (B) convert back to a Eurodollar Rate Advance as soon as practicable following the cessation of the Special Eurodollar Circumstance or the circumstances described in clause (1) or (2) of Section 3.1(e), as applicable, which gave rise to the conversion. If the amounts charged to Borrowers pursuant to Sections 3.7(a) and 3.7(b) make it commercially unreasonable for Borrowers to maintain the Term Loan as a Eurodollar Rate Loan, Borrowers shall be permitted to convert each Term Loan Advance to an Alternate Base Rate Advance at any time thereafter upon notice to the Administrative Agent (it being understood and agreed that Borrowers may so convert such portions of any Term Loan Advance as may be necessary to avoid breakage costs under Section 3.7(f)). A Term Loan Advance so converted shall bear interest as set forth above and shall be re-converted to a Eurodollar Rate Advance upon three (3) Eurodollar Banking Days' notice to the Administrative Agent following the cessation of the Special Eurodollar Circumstance or the circumstances described in Section 3.7(e) or the determination by the Lender that it no longer chooses to require Borrowers to pay such amounts.
(e) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower Borrowers and the Lenders, whereupon until the Administrative Agent notifies Borrower Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. Upon any such suspension, the Term Loan Advances shall be converted to Alternate Base Rate Advances in accordance with Section 3.7(d) as of the first day of the Interest Period during which such circumstances arise.
(ef) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.7(c)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower Borrowers (for a reason other than the breach by a Lender of its obligation pursuant to Sections 2.1(a) or 2.1(b) to make an Advance or the suspension of any Lender's obligation to make or maintain Eurodollar Rate Loans under Section 2.1(a)3.7) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower Borrowers shall pay to the appropriate Lender within five ten (510) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times [the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day number of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on days from and including the date of the prepayment or failure to borrow and ending on borrow, as applicable, to but excluding the last day of in the applicable Eurodollar Period Period], divided by 360, times the applicable Interest Differential (or, if no deposit rate quotation is available for such period, for provided that the most comparable period for which product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(fg) Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Amendment Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this SectionSection 3.7, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section 3.7 shall set forth the basis upon which it has been determined that such an amount is due from BorrowerBorrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Samples: Reducing Revolving and Term Loan Agreement (Station Casinos Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (A) taxes imposed on or measured measured, in whole or in part by its overall net income by (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s 's affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s 's obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a2.1 (a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different different, Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) 15.1.1 In the event that any Governmental Agency Authority imposes on any Credit Facility Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations liabilities (as defined in Regulation D or any comparable regulation of that any Governmental Authority having jurisdiction over any Credit Facility Lender, other than the Eurodollar Reserve Percentage) of any Credit Facility Lender, Borrower shall pay that Lender such lender within five (5) days Business Days after demand all amounts necessary to compensate such Credit Facility Lender (determined as though such Lenderlender’s Eurodollar Lending Office LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 forty five (45) days preceding the date of such demand or is attributable to periods prior to the date which is 180 forty five (45) days preceding the date of such demand). Any Such Credit Facility Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) 15.1.2 If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Credit Facility Lender or its Eurodollar Lending Office LIBOR lending office to any tax, duty or other charge or cost with respect to any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate AdvancesLIBOR Loans, or shall change the basis of taxation of payments to any Credit Facility Lender attributable to the principal of or interest on any Eurodollar Rate Advance LIBOR Loan or any other amounts due under this Agreement in respect of any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate AdvancesLIBOR Loans, excluding (A) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office LIBOR lending office or (2B) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws”;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Credit Facility Lender or its Eurodollar Lending OfficeLIBOR lending office); or
(iii) shall impose on any Credit Facility Lender or its Eurodollar Lending Office LIBOR lending office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advancessuch LIBOR Loan(s), its obligation to make Eurodollar Rate Advances LIBOR Loans or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such any Credit Facility Lender, increases the cost to such any Credit Facility Lender or its Eurodollar Lending Office LIBOR lending office of making or maintaining any Eurodollar Rate Advance LIBOR Loan or in respect of any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate Advances LIBOR Loans or reduces the amount of any sum received or receivable by such any Credit Facility Lender or its Eurodollar Lending Office LIBOR lending office with respect to any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate Advances LIBOR Loans (assuming such Credit Facility Lender’s Eurodollar Lending Office LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender lender (with a copy to the Administrative Agent), Borrower shall pay to such Credit Facility Lender such additional amount or amounts as will compensate such Lender lender for such increased cost or reduction (determined as though such Credit Facility Lender’s Eurodollar Lending Office LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market); provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Credit Facility Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) 15.1.3 If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Credit Facility Lender, make it unlawful or impossible for such Credit Facility Lender or its Eurodollar Lending Office LIBOR lending office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLIBOR Loan, or materially restrict the authority of such Credit Facility Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar RateLIBOR Basis, and Credit Facility Lender shall so notify Administrative Agent, then such Credit Facility Lender’s obligation to make Eurodollar Rate Advances LIBOR Loans shall be suspended for the duration of such illegality or impossibility and the Administrative Agent Credit Facility Lender forthwith shall give notice thereof to the other Credit Facility Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Credit Facility Lender’s affected Eurodollar Rate AdvancesLIBOR Loans, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances Loans on either (i1) the last day of the Eurodollar LIBOR Loan Period(s) applicable to such Eurodollar Rate Advances LIBOR Loans if such Lender lender may lawfully continue to maintain and fund such Eurodollar Rate Advances LIBOR Loans to such day(s) or (ii2) immediately if such Lender lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances LIBOR Loans to such day(s). Each Lender agrees , provided that in such event the conversion shall not be subject to endeavor promptly to notify Borrower payment of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error2.8.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower Borrowers shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower Borrowers shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower Borrowers with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided provided, that Borrower Borrowers shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and BorrowerBorrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.4(e). Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower Borrowers of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Euro dollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower Borrowers and the Lenders, whereupon until the Administrative Agent notifies Borrower Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.4(c)) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower Borrowers (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower Borrowers shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such the Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(23) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from BorrowerBorrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Samples: Loan Agreement (Safeskin Corp)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including INCLUDING any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand)requirements. Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding EXCLUDING (Ai) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” ," and (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by available under applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including INCLUDING any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, Advance or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), PROVIDED that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan or Advance, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspendedsuspended UNLESS (but only if clause (2) above is the basis for such suspension) Borrower notifies the Administrative Agent in writing that Borrower elects to pay the Enhanced Eurodollar Margin with respect to all Eurodollar Rate Loans made during such period.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (OTHER THAN as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Advance in any Request for BorrowingLoan or Request for Competitive Bids, or upon the failure of Borrower to prepay a Eurodollar Rate Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(d), Borrower shall pay to the appropriate Lender within five (5) Banking ten Business Days after demand a prepayment fee, failure to borrow fee or failure to borrow prepay fee, as the case may be (determined as though 100% of the that Lender's Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) ), equal to the sum ofSUM OF:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at or prepaid, as the Eurodollar Rate plus case may be, TIMES [the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day number of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on days from and including the date of the prepayment or failure to borrow and ending on or prepay, as applicable, to but excluding the last day of in the applicable Eurodollar Period Period], DIVIDED BY 360, TIMES the applicable Interest Differential (or, if no deposit rate quotation is available for such period, for PROVIDED that the most comparable period for which product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plusPLUS
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
(g) If any Lender claims compensation or is excused from making or continuing Eurodollar Rate Loans or Advances under this Section:
(i) Borrower may at any time, upon at least four (4) Eurodollar Business Days' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment PLUS any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected Eurodollar Rate Advances of such Lender or request that such Eurodollar Rate Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower becomes obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.26; PROVIDED that Borrower shall have paid such amount to that Lender and that Borrower, within the thirty day period following the date of such payment, shall have notified that Lender in writing of Borrower's intent to so remove the Lender.
Appears in 1 contract
Samples: Loan Agreement (MGM Mirage)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar CircumstanceCircumstance shall:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to of the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding EXCLUDING, with respect to each Creditor, and any Affiliate or Eurodollar Lending Office thereof, (Ai) taxes imposed on or measured in whole or in part by its overall net income, gross income by or gross receipts or capital and franchise taxes imposed on it, (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (Bii) any withholding taxes or other taxes based on gross income imposed (other than withholding taxes and taxes based on gross income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by the United States of America any Governmental Agency) or (iii) any withholding taxes or other taxes based on gross income for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.2111.22, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including INCLUDING, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, BUT EXCLUDING the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition materially affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise materially affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by PROVIDED THAT such Lender makes demand upon Borrower (with a copy to the Administrative Agent)) within 90 days following the date upon which it becomes aware of any such event or circumstance, Borrower shall within five Business Days pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); . Borrower hereby indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within five Business Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions provided that Borrower shall not be obligated to pay for or contemplated herein, as a result of the existence or occurrence of any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demandSpecial Eurodollar Circumstance. A statement of any Lender claiming compensation under this subsection and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to this Section and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the judgment of such Lender, otherwise be materially disadvantageous to such Lender. If any Lender claims compensation under this Section, Borrower may at any time, upon at least four Eurodollar Business Days' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment PLUS any prepayment fee required by Section 3.8(d), pay in full the affected Eurodollar Rate Advances of such Lender or request that such Eurodollar Rate Advances be converted to Base Rate Advances. To the extent that any Lender which receives any payment from Borrower under this Section later receives any funds which are identifiable as a reimbursement or rebate of such amount from any other Person, such Lender shall promptly refund such amount to Borrower.
(cb) If, after the date hereof, If the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful unlawful, impossible or impossible impracticable for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality illegality, impossibility or impossibility impracticability and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances with Eurodollar Periods corresponding to the Eurodollar Loans of which such Eurodollar Rate Advances were a part on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), PROVIDED that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(d). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this SectionSection 3.8(b), and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section 3.8(b) shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to specify a Base Rate Loan.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance Advance, (OTHER THAN as the result of a conversion required under Section 3.1(d) or 3.8(b)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender within five (5) Banking Business Days after demand a prepayment fee or failure to borrow fee, as the case may be be, (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum SUM of:
(1) principal amount of the amount, if any, by which (i) the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, TIMES the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day quotient of the applicable Eurodollar Period exceeds (iiA) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on number of days between the date of the prepayment or failure to borrow borrow, as applicable, and ending on the last day of in the applicable Eurodollar Period Period, DIVIDED BY (orB) 360, if no deposit rate quotation is available for such period, for TIMES the most comparable period for which applicable Interest Differential (PROVIDED that the product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plusPLUS
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section 3.8(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including INCLUDING any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower Borrowers shall pay that Lender within five ten (510) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided PROVIDED, that Borrower the Borrowers shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding EXCLUDING (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized orga nized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
Circumstance shall: (i1) shall subject any Lender Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to Bank of the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding excluding, with respect to each Creditor, and any Affiliate or Eurodollar Lending Office thereof, (Ai) taxes imposed on or measured in whole or in part by its overall net income, gross income by or gross receipts or capital and franchise taxes imposed on it, (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (Bii) any withholding taxes or other taxes based on gross income imposed (other than withholding taxes and taxes based on gross income resulting from or attribut- able to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by the United States of America any Governmental Agency) or (iii) any withholding taxes or other taxes based on gross income for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.2111.22, to the extent such forms are then required by applicable Laws;
; (ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, but excluding the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its Eurodollar Lending Office); or
or (iii3) shall impose on any Lender Bank or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition materially affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise materially affect any of the same; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after provided that such Bank makes demand by such Lender upon Borrower (with a copy to the Administrative Agent)) within 90 days following the date upon which it becomes aware of any such event or circumstance, Borrower shall within five Banking Days pay to such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Desig- nated Eurodollar Market); . Borrower hereby indemnifies each Bank against, and agrees to hold each Bank harmless from and reimburse such Bank within five (5) Banking Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by each Bank in connection with this Agreement, or any of the rights, obligations or transactions provided that Borrower shall not be obligated to pay for or contemplated herein, as a result of the existence or occurrence of any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demandSpecial Eurodollar Circumstance. A statement of any Lender Bank claiming compensation under this subsection and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Bank to compensation pursuant to this Section and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the judgment of such Bank, otherwise be materially disadvantageous to such Bank. If any Bank claims compensation under this Section, Borrower may at any time, upon at least four (4) Eurodollar Banking Days' prior notice to the Administrative Agent and such Bank and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee required by Section 3.8(d), pay in full the affected Eurodollar Rate Advances of such Bank or request that such Eurodollar Rate Advances be converted to Base Rate Advances. To the extent that any Bank which receives any payment from Borrower under this Section later receives any funds which are identifiable as a reimbursement or rebate of such amount from any other Person, such Bank shall promptly refund such amount to Borrower.
(cb) If, after the date hereof, If the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful unlawful, impossible or impossible impracticable for such Lender Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Euro- dollar Rate AdvancesLoan, or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank shall so notify the Administrative Agent, then such Lender’s Bank's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality illegality, impossibility or impossibility impracticability and the Administrative Agent forthwith shall give notice thereof to the other Lenders Banks and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Bank's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances with Eurodollar Periods corresponding to the Eurodollar Loans of which such Eurodollar Rate Advances were a part on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender Bank may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender Bank may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(d). Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender that Bank to notify Borrower as set forth in the first sentence of Administrative Agent under this SectionSection 3.8(b), and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender Bank shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Bank whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section 3.8(b) shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
Loan: (i1) the Administrative Agent reasonably determines deter- mines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Bank in the Designated Eurodollar Market for the applicable Eurodollar Period; or
or (ii2) the Requisite Lenders Banks advise the Administrative Administra- tive Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Eurodollar Euro- dollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the LendersBanks, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Banks to make any future Eurodollar Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to spe- cify a Base Rate Loan.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance Advance, (other than as the result of a conversion required under Section 3.1(d) or 3.8(b)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant Bank to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender Bank within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be be, (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Desig- nated Eurodollar Market) equal to the sum of:
: (1) principal amount of the amount, if any, by which (i) the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day quotient of the applicable Eurodollar Period exceeds (iiA) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on number of days between the date of the prepayment or failure to borrow borrow, as applicable, and ending on the last day of in the applicable Eurodollar Period Period, divided by (orB) 360, if no deposit rate quotation is available for such period, for times the most comparable period for which applicable Interest Differential (provided that the product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
plus (2) all out-of-pocket expenses incurred by such Lender the Bank reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s Bank's determination of the amount of any prepayment fee payable under this Section 3.8(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand)requirements. Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” ," and (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.2112.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, Advance or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Datedate hereof, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan or Advance, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Advance in any Request for BorrowingLoan, or upon the failure of Borrower to prepay a Eurodollar Rate Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower shall pay to the appropriate Lender within five (5) Banking ten Business Days after demand a prepayment fee, failure to borrow fee or failure to borrow prepay fee, as the case may be (determined as though 100% of the that Lender's Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) ), equal to the sum of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at or prepaid, as the Eurodollar Rate plus case may be, times [the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day number of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on days from and including the date of the prepayment or failure to borrow and ending on or prepay, as applicable, to but excluding the last day of in the applicable Eurodollar Period Period], divided by 360, times the applicable Interest Differential (or, if no deposit rate quotation is available for such period, for provided that the most comparable period for which product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Datedate hereof, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
(g) If any Lender claims compensation or is excused from making or continuing Eurodollar Rate Loans or Advances under this Section, Borrower may at any time, upon at least four (4) Eurodollar Business Days' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, request that such Eurodollar Rate Advances be converted to Base Rate Advances.
Appears in 1 contract
Samples: Loan Agreement (Station Casinos Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender Bank any reserve or comparable requirement (including any emergency, --------- supplemental or other reserve) with respect to the Eurodollar Obligations of that LenderBank, other than Borrower or the Eurodollar Reserve Percentage, relevant Co-Borrower shall pay that Lender Bank within five (5) days Banking Days after demand all amounts necessary to compensate such Lender Bank (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand)requirements. Any Lender’s The Bank's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender Bank attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes --------- imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” ," and (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by available under applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any --------- reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender Bank or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender Bank for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation tion under this subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) . If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, Advance or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rateistrative Agent, then such Lender’s Bank's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Bank's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender Bank may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender Bank may not lawfully continue to fund and maintain such Eurodollar Rate Advances to provided that in such day(s). Each Lender agrees event the -------- conversion shall not to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender that Bank to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation Administrative Agent nation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth above, to make, maintain Loan or fund any Eurodollar Rate Advance, such Lender Bank shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Any Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) . If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders Banks advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the LendersBanks, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Banks to make any future Eurodollar Rate Advances shall be suspendedsuspended unless (but only if clause (2) above is the ------ basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced Eurodollar Margin with respect to all Eurodollar Rate Loans made during such period.
(e1) Upon payment or prepayment the principal amount of any the Eurodollar Rate Advance on a day other than prepaid or not borrowed or prepaid, as the case may be, times [the number of ----- days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Eurodollar Period Period], divided by 360, times the applicable Interest ---------- ----- Differential (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon provided that the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% product of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for foregoing formula must -------- be a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtainedpositive number); plusplus ----
(2) all out-of-pocket expenses incurred by such Lender the Bank reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s Bank's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized orga nized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate 41 form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(e). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Euro dollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.8(c) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such the Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(23) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Samples: Revolving Loan Agreement (Usec Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; ;
(4) and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(e). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.8(c) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such the Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(23) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Samples: Revolving Loan Agreement (Usec Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand)requirements. Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts and franchise taxes imposed on it, by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.,"
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender Bank any reserve or comparable requirement (including any --------- emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve PercentageBank, Borrower shall pay that Lender Bank within five (5) days Banking Days after demand all amounts necessary to compensate such Lender Bank (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand)requirements. Any Lender’s The Bank's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
: (i1) shall subject any Lender Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender Bank attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on --------- or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” ," and (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the ----- extent such forms are then required by available under applicable Laws;
; (ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the --------- Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its Eurodollar Lending Office); or
or (iii3) shall impose on any Lender Bank or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower shall pay to such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender Bank claiming compensation under this subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful or impossible for such Lender Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank shall so notify the Administrative Agent, then such Lender’s Bank's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders Banks and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Bank's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender Bank may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender Bank may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion -------- shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender that Bank to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender Bank shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Bank whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Bank in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders Banks advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable Eurodollar Euro-dollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.;
Appears in 1 contract
Samples: Loan Agreement (MGM Grand Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount unless such Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand (except to the extent of any retroactive application of the law, rule, regulation or guideline (or similar) giving rise to such demand)). Any The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1a) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2b) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount unless such Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.6(e). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In Borrower shall have the event that any Lender’s right to replace such Lender by causing such Lender to assign its Commitments to one or more other then-existing Lenders or to another Eligible Assignee reasonably satisfactory to the Administrative Agent and the other then-existing Lenders. Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender after the Closing Date any reserve or comparable requirement (including any emergency, supplemental or other reservereserve but excluding any such amount included in the calculation of the Eurodollar Rate) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demanddemand and shall not be obligated to pay any such amount unless such Lender is generally making claims for compensation for such imposition against other similarly situated borrowers). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (A) taxes imposed on or measured in whole or in part by its overall net income by (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” Income Taxes and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.213.11(e), to the extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)Board, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office, but excluding any such amount included in the calculation of the Eurodollar Rate); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount (i) which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demanddemand and shall not be obligated to pay any such amount unless such Lender is generally making claims for compensation for any of the items listed in clauses (i), (ii) or (iii) above against other similarly situated borrowers. Payments by Borrower under this subsection shall not include (A) Income Taxes attributable to Lenders, and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America on any Lender for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 3.11(e), to the extent such forms are then required by applicable Laws. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s)) and any interest accrued up to the date of such conversion shall be paid on the next Quarterly Payment Date. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. Each Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the circumstances described in clause (d)(ii) above, and the Administrative Agent shall promptly notify Borrower when the circumstances described in clause (d)(i) above no longer apply and shall promptly notify Borrower when the Requisite Lenders have notified the Administrative Agent of the cessation of the circumstances described in clause (d)(ii) above. Upon such notice from the Administrative Agent, the restrictions set forth in this subsection 3.6(d) shall no longer apply.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(23) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a reasonably detailed calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Samples: Credit Agreement (West Marine Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender Bank attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding EXCLUDING (Ai) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts or capital and franchise taxes imposed on it, by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " (unless it would not be doing business in such jurisdiction (or political subdivision thereof) absent the transactions contemplated hereby), (ii) any withholding taxes or other taxes based on gross income imposed by the United States of America (other than withholding taxes and taxes based on gross income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by any Governmental Agency) or (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section SECTION 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including INCLUDING, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, BUT EXCLUDING the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender Bank or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower shall pay to such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); . Borrower hereby indemnifies each Bank against, and agrees to hold each Bank harmless from and reimburse such Bank within ten (10) Banking Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, reasonable legal fees and damages incurred or sustained by each Bank in connection with this Agreement, or any of the rights, obligations or transactions provided that Borrower shall not be obligated to pay for or contemplated herein, as a direct result of the existence or occurrence of any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demandSpecial Eurodollar Circumstance. A statement of any Lender Bank claiming compensation under this subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Bank to compensation pursuant to this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Bank, otherwise be materially disadvantageous to such Bank. If any Bank claims compensation under this Section, Borrower may at any time, upon at least three (3) Eurodollar Banking Days' prior notice to the Agent and such Bank and upon payment in full of the amounts provided for in this Section through the date of such payment PLUS any prepayment fee required by Section 3.6(d), pay in full the affected Eurodollar Rate Advances of such Bank or convert such Eurodollar Rate Advances to Alternate Base Rate Advances.
(cb) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful or impossible for such Lender Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank shall so notify the Agent, then such Lender’s Bank's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders Banks and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Bank's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Xxxxxxxxx Xxxx Rate Advances with Eurodollar Periods corresponding to the Eurodollar Loans of which such Eurodollar Rate Advances were a part on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender Bank may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender Bank may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), PROVIDED that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.7(d). Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender that Bank to notify Borrower as set forth in the first sentence of Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender Bank shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Bank whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Bank in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders Banks advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the LendersBanks, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Banks to make any future Eurodollar Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to specify an Alternate Base Rate Loan.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance (OTHER THAN as the result of a conversion required under Section 3.7(b)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant Bank to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender Bank within five ten (510) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum SUM of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, TIMES [the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day number of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on days between the date of the prepayment or failure to borrow borrow, as applicable, and ending on the last day of in the applicable Eurodollar Period Period], DIVIDED BY 360, TIMES the applicable Interest Differential (or, if no deposit rate quotation is available for such period, for PROVIDED that the most comparable period for which product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plusPLUS
(2) all out-of-pocket expenses incurred by such Lender the Bank reasonably and directly attributable to such payment, prepayment or failure to borrow. Each Lender’s Bank's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender Bank any reserve or comparable requirement (including any emergency, --------- supplemental or other reserve) with respect to the Eurodollar Obligations of that LenderBank, other than Borrower or the Eurodollar Reserve Percentage, relevant Co-Borrower shall pay that Lender Bank within five (5) days Banking Days after demand all amounts necessary to compensate such Lender Bank (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand)requirements. Any Lender’s The Bank's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender Bank attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes --------- imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” ," and (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by available under applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any --------- reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender Bank or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender Bank claiming compensation under this subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful or impossible for such Lender Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, Advance or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank shall so notify the Administrative Agent, then such Lender’s Bank's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders Banks and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Bank's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender Bank may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender Bank may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in -------- such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender that Bank to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan or Advance, such Lender Bank shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Bank whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Bank in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders Banks advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the LendersBanks, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Banks to make any future Eurodollar Rate Advances shall be suspendedsuspended unless (but only if clause (2) above is the ------ basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced Eurodollar Margin with respect to all Eurodollar Rate Loans made during such period.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under clause (c) ----- ---- of this Section) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co- Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant Bank to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Advance in any Request for BorrowingLoan or Request for Competitive Bids, or upon the failure of Borrower shall pay or any Co-Borrower to prepay a Eurodollar Rate Loan or Advance on the date specified in a notice of prepayment delivered to the appropriate Lender within five Administrative Agent
(51) Banking Days after demand a prepayment fee the principal amount of the Eurodollar Rate Advance prepaid or failure to borrow feenot borrowed or prepaid, as the case may be (determined as though 100% be, times [the ----- number of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on days from and including the date of the prepayment or failure to borrow and ending on or prepay, as applicable, to but excluding the last day of in the applicable Eurodollar Period Period], divided by 360, times the applicable ------- ----- Interest Differential (or, if no deposit rate quotation is available for such period, for provided that the most comparable period for which product of the foregoing -------- formula must be a deposit rate quotation may be obtainedpositive number); plusplus ----
(2) all out-of-pocket expenses incurred by such Lender the Bank reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s Bank's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender Bank to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. Any request for compensation by a Lender Bank under this Section shall set forth the basis upon which it has been determined that such an amount is due from BorrowerBorrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Bank.
(g) If any Bank claims compensation or is excused from making or continuing Eurodollar Rate Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Eurodollar Banking Days' prior notice to the Administrative Agent and such LenderBank and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) ---- required by clause (e) of this Section, pay in full the affected Eurodollar Rate Advances of such Bank or request that such Eurodollar Rate Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Bank, that Bank will be subject to removal in accordance with Section 11.27; provided that Borrower and the Co-Borrowers shall have paid -------- such amount to that Bank and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Bank in writing of their intent to so remove the Bank.
Appears in 1 contract
Samples: Loan Agreement (MGM Grand Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
Circumstance shall: (i1) shall subject any Lender Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to Bank of the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding excluding, with respect to each Creditor, and any Affiliate or Eurodollar Lending Office thereof, (Ai) taxes imposed on or measured in whole or in part by its overall net income, gross income by or gross receipts or capital and franchise taxes imposed on it, (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (Bii) any withholding taxes or other taxes based on gross income imposed (other than withholding taxes and taxes based on gross income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by the United States of America any Governmental Agency) or (iii) any withholding taxes or other taxes based on gross income for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.2111.22, to the extent such forms are then required by applicable Laws;
; (ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, but excluding the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its Eurodollar Lending Office); or
or (iii3) shall impose on any Lender Bank or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition materially affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise materially affect any of the same; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after provided that such Bank makes demand by such Lender upon Borrower (with a copy to the Administrative Agent)) within 90 days following the date upon which it becomes aware of any such event or circumstance, Borrower shall within five Banking Days pay to such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); . Borrower hereby indemnifies each Bank against, and agrees to hold each Bank harmless from and reimburse such Bank within five (5) Banking Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by each Bank in connection with this Agreement, or any of the rights, obligations or transactions provided that Borrower shall not be obligated to pay for or contemplated herein, as a result of the existence or occurrence of any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demandSpecial Eurodollar Circumstance. A statement of any Lender Bank claiming compensation under this subsection and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Bank to compensation pursuant to this Section and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the judgment of such Bank, otherwise be materially disadvantageous to such Bank. If any Bank claims compensation under this Section, Borrower may at any time, upon at least four (4) Eurodollar Banking Days' prior notice to the Administrative Agent and such Bank and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee required by Section 3.8(d), pay in full the affected Eurodollar Rate Advances of such Bank or request that such Eurodollar Rate Advances be converted to Alternate Base Rate Advances. To the extent that any Bank which receives any payment from Borrower under this Section later receives any funds which are identifiable as a reimbursement or rebate of such amount from any other Person, such Bank shall promptly refund such amount to Borrower.
(cb) If, after the date hereof, If the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful unlawful, impossible or impossible impracticable for such Lender Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine deter- mine or charge interest rates based upon the Eurodollar Rate, and such Bank shall so notify the Administrative Agent, then such Lender’s Bank's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality illegality, impossibility or impossibility impracticability and the Administrative Agent forthwith shall give notice thereof to the other Lenders Banks and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Bank's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances with Eurodollar Periods corresponding to the Eurodollar Loans of which such Eurodollar Rate Advances were a part on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender Bank may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender Bank may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(d). Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender that Bank to notify Borrower as set forth in the first sentence of Administrative Agent under this SectionSection 3.8(b), and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender Bank shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Bank whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section 3.8(b) shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
Loan: (i1) the Administrative Agent reasonably determines deter- mines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Bank in the Designated Eurodollar Market for the applicable Eurodollar Period; or
or (ii2) the Requisite Lenders Banks advise the Administrative Administra- tive Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the LendersBanks, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Banks to make any future Eurodollar Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to specify an Alternate Base Rate Loan.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance Advance, (other than as the result of a conversion required under Section 3.1(d) or 3.8(b)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant Bank to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender Bank within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be be, (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
: (1) principal amount of the amount, if any, by which (i) the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day quotient of the applicable Eurodollar Period exceeds (iiA) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on number of days between the date of the prepayment or failure to borrow borrow, as applicable, and ending on the last day of in the applicable Eurodollar Period Period, divided by (orB) 360, if no deposit rate quotation is available for such period, for times the most comparable period for which applicable Interest Differential (provided that the product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
plus (2) all out-of-pocket expenses incurred by such Lender the Bank reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s Bank's determination of the amount of any prepayment fee payable under this Section 3.8(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized orga nized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate -45- 52 form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain main tain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.6(e). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Euro dollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.6(c) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such the Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(23) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) 14.1.1 In the event that any Governmental Agency Authority imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations liabilities (as defined in Regulation D or any comparable regulation of that any Governmental Authority having jurisdiction over any Lender, other than the Eurodollar Reserve Percentage) of any Lender, Borrower shall pay that Lender such lender within five (5) days Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office lender's LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any Such Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) 14.1.2 If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(ia) shall subject any Lender or its Eurodollar Lending Office LIBOR lending office to any tax, duty or other charge or cost with respect to any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate AdvancesLIBOR Loans, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance LIBOR Loan or any other amounts due under this Agreement in respect of any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate AdvancesLIBOR Loans, excluding (A) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office LIBOR lending office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws";
(iib) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending OfficeLIBOR lending office); or
(iiic) shall impose on any Lender or its Eurodollar Lending Office LIBOR lending office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advancessuch LIBOR Loan(s), its obligation to make Eurodollar Rate Advances LIBOR Loans or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such any Lender, increases the cost to such any Lender or its Eurodollar Lending Office LIBOR lending office of making or maintaining any Eurodollar Rate Advance LIBOR Loan or in respect of any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Revolving Note evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate Advances LIBOR Loans or reduces the amount of any sum received or receivable by such any Lender or its Eurodollar Lending Office LIBOR lending office with respect to any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate Advances LIBOR Loans (assuming such Lender’s Eurodollar Lending Office 's LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office 's LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market); provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) 14.1.3 If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office LIBOR lending office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLIBOR Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar RateLIBOR Basis, and Lender shall so notify Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances LIBOR Loans shall be suspended for the duration of such illegality or impossibility and the Administrative Agent Lender forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances's LIBOR Loans, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances Loans on either (i1) the last day of the Eurodollar LIBOR Loan Period(s) applicable to such Eurodollar Rate Advances LIBOR Loans if such Lender lender may lawfully continue to maintain and fund such Eurodollar Rate Advances LIBOR Loans to such day(s) or (ii2) immediately if such Lender lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances LIBOR Loans to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 2.6.5. Each Lender Lenders agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such any Lender to notify Borrower as set forth in the first sentence of Agent under this Section, and agrees to designate a different Eurodollar Lending Office LIBOR lending office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lenderlender, otherwise be materially disadvantageous to such Lenderlender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLIBOR Loan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance Loan for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate AdvanceLoan. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances LIBOR Loans has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension. Borrower shall have the right to terminate the Revolving Commitment of any Lender for which the funding of LIBOR Loans becomes unlawful or impossible, as set forth above, and to substitute a new Lender into this Agreement subject to the provisions of Section 12.7.28 of this Agreement.
(d) 14.1.4 If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLIBOR Loan, any Lender:
(ia) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenderssuch lender, deposits in Dollars (in the applicable amounts) are not being offered to any Lender lender in the Designated Eurodollar Market for the applicable Eurodollar LIBOR Loan Period; or
(iib) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate LIBOR Basis as determined by the Administrative Agent such lender (Ai) does not represent the effective pricing to such Lenders lender for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar LIBOR Loan Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders lender of making the applicable Eurodollar Rate AdvancesLIBOR Loans; then the Administrative Agent lender forthwith shall give notice thereof to Borrower and the LendersAgent, whereupon until the Administrative Agent such lender notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Lender to make any future Eurodollar Rate Advances LIBOR Loans shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) 14.1.5 Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such any Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office LIBOR lending office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lenderlender, otherwise be materially disadvantageous to such Lenderlender. Any request for compensation by a any Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lenderlender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five ten (510) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days one year preceding the date of such demand or is attributable to periods prior to the date which is 180 days one year preceding the date of such demand). Any Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (A) taxes imposed on or measured in whole or in part by its overall net income by (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days one year preceding the date of such demand or is attributable to periods prior to the date which is 180 days one year preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s 's affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.6(e). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s 's obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.6(c)) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(23) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) 15.1.1 In the event that any Governmental Agency Authority imposes on any Credit Facility Lender any reserve reserve, special deposit or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations liabilities (as defined in Regulation D or any comparable regulation of that any Governmental Authority having jurisdiction over any Credit Facility Lender, other than the Eurodollar Reserve Percentage) of any Credit Facility Lender, Borrower shall pay that Lender such lender within five (5) days Business Days after demand all amounts necessary to compensate such Credit Facility Lender (determined as though such Lenderlender’s Eurodollar Lending Office LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 forty five (45) days preceding the date of such demand or is attributable to periods prior to the date which is 180 forty five (45) days preceding the date of such demand). Any Such Credit Facility Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) 15.1.2 If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(ia) shall subject any Credit Facility Lender or its Eurodollar Lending Office LIBOR lending office to any tax, duty or other charge or cost with respect to any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate AdvancesLIBOR Loans, or shall change the basis of taxation of payments to any Credit Facility Lender attributable to the principal of or interest on any Eurodollar Rate Advance LIBOR Loan or any other amounts due under this Agreement in respect of any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate AdvancesLIBOR Loans, excluding (A) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office LIBOR lending office or (2B) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws”;
(iib) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Credit Facility Lender or its Eurodollar Lending OfficeLIBOR lending office); or
(iiic) shall impose on any Credit Facility Lender or its Eurodollar Lending Office LIBOR lending office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advancessuch LIBOR Loan(s), its obligation to make Eurodollar Rate Advances LIBOR Loans or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such any Credit Facility Lender, increases the cost to such any Credit Facility Lender or its Eurodollar Lending Office LIBOR lending office of making or maintaining any Eurodollar Rate Advance LIBOR Loan or in respect of any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate Advances LIBOR Loans or reduces the amount of any sum received or receivable by such any Credit Facility Lender or its Eurodollar Lending Office LIBOR lending office with respect to any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate Advances LIBOR Loans (assuming such Credit Facility Lender’s Eurodollar Lending Office LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender lender (with a copy to the Administrative Agent), Borrower shall pay to such Credit Facility Lender such additional amount or amounts as will compensate such Lender lender for such increased cost or reduction (determined as though such Credit Facility Lender’s Eurodollar Lending Office LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Credit Facility Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) 15.1.3 If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Credit Facility Lender, make it unlawful or impossible for such Credit Facility Lender or its Eurodollar Lending Office LIBOR lending office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLIBOR Loan, or materially restrict the authority of such Credit Facility Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar RateLIBOR Basis, and Credit Facility Lender shall so notify Administrative Agent, then such Credit Facility Lender’s obligation to make Eurodollar Rate Advances LIBOR Loans shall be suspended for the duration of such illegality or impossibility and the Administrative Agent Credit Facility Lender forthwith shall give notice thereof to the other Credit Facility Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Credit Facility Lender’s affected Eurodollar Rate AdvancesLIBOR Loans, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances Loans on either (i1) the last day of the Eurodollar LIBOR Loan Period(s) applicable to such Eurodollar Rate Advances LIBOR Loans if such Lender lender may lawfully continue to maintain and fund such Eurodollar Rate Advances LIBOR Loans to such day(s) or (ii2) immediately if such Lender lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances LIBOR Loans to such day(s). Each Lender agrees , provided that in such event the conversion shall not be subject to endeavor promptly to notify Borrower payment of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error2.8.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount unless such Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand (except to the extent of any retroactive application of the law, rule, regulation or guideline (or similar) giving rise to such demand)). Any The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding excluding, in each case, (A) taxes imposed on or measured in whole or in part by its overall net income by (1i) any jurisdiction Indemnified Taxes (or political subdivision thereofas to which Section 3.11 shall govern exclusively), and (ii) any Taxes described in which it is organized or maintains its principal office or Eurodollar Lending Office clause (a), (c) or (2d) any jurisdiction (or political subdivision thereof) in which it is of the definition of “doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable LawsExcluded Taxes”;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount unless such Lender is charging similar amounts to similarly situated Borrowers and provided further that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.6(e). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In Borrower shall have the event that any Lender’s right to replace such Lender by causing such Lender to assign its Commitments to one or more other then-existing Lenders or to another Eligible Assignee reasonably satisfactory to the Administrative Agent. Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.6(c)) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan after such Request for Loan has become irrevocable, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such the Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(23) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender. Borrower may replace such Lender by notifying such Lender, within five (5) Banking Days after demand of such Lender, of Borrower’s intention to replace such Lender and Borrower shall then replace such Lender by causing such Lender to assign its Commitments to one or more other then-existing Lenders or to another Eligible Assignee reasonably satisfactory to the Administrative Agent within forty-five (45) days after demand of such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate AdvancesAdvances (provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety days preceding the date of such demand or is attributable to periods prior to the date which is ninety days preceding the date of such demand), excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.2112.21, to the extent such forms are then required by applicable Laws;
(ii2) without duplication as to Section 3.8(a), shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(e). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.8(c)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Sections 2.1(a) to make an Advance or the suspension of any Lender's obligation to make or maintain Eurodollar Rate Loans under Section 2.1(a)3.8) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender within five (5) Banking ten Business Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day sum of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on number of days from and including the date of the prepayment or failure to borrow and ending on borrow, as applicable, to but excluding the last day of in the applicable Eurodollar Period Period, divided by 360, times the applicable Interest Differential (or, if no deposit rate quotation is available for such period, for provided that the most comparable period for which product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this SectionSection 3.8, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section 3.8 shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Samples: Reducing Revolving Loan Agreement (Station Casinos Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, --------- supplemental or other reserve) with respect to the Eurodollar Obligations hereunder of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that -------- Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.---------
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender Bank any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that LenderBank, other than Borrower or the Eurodollar Reserve Percentage, relevant Co-Borrower shall pay that Lender Bank within five (5) days Banking Days after demand all amounts necessary to compensate such Lender Bank (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand)requirements. Any Lender’s The Bank's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender Bank attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” ," and (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by available under applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender Bank or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender Bank claiming compensation under this subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful or impossible for such Lender Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, Advance or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank shall so notify the Administrative Agent, then such Lender’s Bank's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders Banks and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Bank's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender Bank may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender Bank may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender that Bank to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan or Advance, such Lender Bank shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Bank whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Bank in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders Banks advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the LendersBanks, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Banks to make any future Eurodollar Rate Advances shall be suspendedsuspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced Eurodollar Margin with respect to all Eurodollar Rate Loans made during such period.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant Bank to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Advance in any Request for BorrowingLoan, or upon the failure of Borrower or any Co-Borrower to prepay a Eurodollar Rate Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender Bank within five (5) ten Banking Days after demand a prepayment fee, failure to borrow fee or failure to borrow prepay fee, as the case may be (determined as though 100% of the that Bank's Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) ), equal to the sum of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at or prepaid, as the Eurodollar Rate plus case may be, times [the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day number of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on days from and including the date of the prepayment or failure to borrow and ending on or prepay, as applicable, to but excluding the last day of in the applicable Eurodollar Period Period], divided by 360, times the applicable Interest Differential (or, if no deposit rate quotation is available for such period, for provided that the most comparable period for which product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-pocket expenses incurred by such Lender the Bank reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s Bank's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender Bank to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. Any request for compensation by a Lender Bank under this Section shall set forth the basis upon which it has been determined that such an amount is due from BorrowerBorrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Bank.
(g) If any Bank claims compensation or is excused from making or continuing Eurodollar Rate Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Eurodollar Banking Days' prior notice to the Administrative Agent and such LenderBank and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected Eurodollar Rate Advances of such Bank or request that such Eurodollar Rate Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Bank, that Bank will be subject to removal in accordance with Section 11.26; provided that Borrower and the Co-Borrowers shall have paid such amount to that Bank and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Bank in writing of their intent to so remove the Bank.
Appears in 1 contract
Samples: 364 Day Loan Agreement (MGM Mirage)
Eurodollar Costs and Related Matters. (a) 14.1.1 In the event that any Governmental Agency Authority imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations liabilities (as defined in Regulation D or any comparable regulation of that any Governmental Authority having jurisdiction over any Lender, other than the Eurodollar Reserve Percentage) of any Lender, Borrower shall pay that Lender such lender within five (5) days Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office lender's LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any Such Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) 14.1.2 If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(ia) shall subject any Lender or its Eurodollar Lending Office LIBOR lending office to any tax, duty or other charge or cost with respect to any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate AdvancesLIBOR Loans, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance LIBOR Loan or any other amounts due under this Agreement in respect of any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate AdvancesLIBOR Loans, excluding (A) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office LIBOR lending office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws";
(iib) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending OfficeLIBOR lending office); or
(iiic) shall impose on any Lender or its Eurodollar Lending Office LIBOR lending office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advancessuch LIBOR Loan(s), its obligation to make Eurodollar Rate Advances LIBOR Loans or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such any Lender, increases the cost to such any Lender or its Eurodollar Lending Office LIBOR lending office of making or maintaining any Eurodollar Rate Advance LIBOR Loan or in respect of any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate Advances LIBOR Loans or reduces the amount of any sum received or receivable by such any Lender or its Eurodollar Lending Office LIBOR lending office with respect to any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate Advances LIBOR Loans (assuming such Lender’s Eurodollar Lending Office 's LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office 's LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market); provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) 14.1.3 If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office LIBOR lending office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLIBOR Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar RateLIBOR Basis, and Lender shall so notify Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances LIBOR Loans shall be suspended for the duration of such illegality or impossibility and the Administrative Agent Lender forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances's LIBOR Loans, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances Loans on either (i1) the last day of the Eurodollar LIBOR Loan Period(s) applicable to such Eurodollar Rate Advances LIBOR Loans if such Lender lender may lawfully continue to maintain and fund such Eurodollar Rate Advances LIBOR Loans to such day(s) or (ii2) immediately if such Lender lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances LIBOR Loans to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 2.6.5. Each Lender Lenders agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such any Lender to notify Borrower as set forth in the first sentence of Agent under this Section, and agrees to designate a different Eurodollar Lending Office LIBOR lending office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lenderlender, otherwise be materially disadvantageous to such Lenderlender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLIBOR Loan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance Loan for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate AdvanceLoan. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances LIBOR Loans has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension. Borrower shall have the right to terminate the Revolving Commitment of any Lender for which the funding of LIBOR Loans becomes unlawful or impossible, as set forth above, and to substitute a new Lender into this Agreement subject to the provisions of Section 12.7.28 of this Agreement.
(d) 14.1.4 If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLIBOR Loan, any Lender:
(ia) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenderssuch lender, deposits in Dollars (in the applicable amounts) are not being offered to any Lender lender in the Designated Eurodollar Market for the applicable Eurodollar LIBOR Loan Period; or
(iib) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate LIBOR Basis as determined by the Administrative Agent such lender (Ai) does not represent the effective pricing to such Lenders lender for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar LIBOR Loan Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders lender of making the applicable Eurodollar Rate AdvancesLIBOR Loans; then the Administrative Agent lender forthwith shall give notice thereof to Borrower and the LendersAgent, whereupon until the Administrative Agent such lender notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Lender to make any future Eurodollar Rate Advances LIBOR Loans shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) 14.1.5 Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such any Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office LIBOR lending office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lenderlender, otherwise be materially disadvantageous to such Lenderlender. Any request for compensation by a any Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lenderlender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five ten (510) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (A) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws”;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days one year preceding the date of such demand or is attributable to periods prior to the date which is 180 days one year preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s). Each Lender agrees , provided that in such event the conversion shall not be subject to endeavor promptly to notify Borrower payment of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.3.6
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) 14.1.1 In the event that any Governmental Agency Authority imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations liabilities (as defined in Regulation D or any comparable regulation of that any Governmental Authority having jurisdiction over any Lender, other than the Eurodollar Reserve Percentage) of any Lender, Borrower shall pay that Lender such lender within five (5) days Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office lender's LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any Such Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) 14.1.2 If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(ia) shall subject any Lender or its Eurodollar Lending Office LIBOR lending office to any tax, duty or other charge or cost with respect to any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate AdvancesLIBOR Loans, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance LIBOR Loan or any other amounts due under this Agreement in respect of any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate AdvancesLIBOR Loans, excluding (A) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office LIBOR lending office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws";
(iib) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending OfficeLIBOR lending office); or
(iiic) shall impose on any Lender or its Eurodollar Lending Office LIBOR lending office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advancessuch LIBOR Loan(s), its obligation to make Eurodollar Rate Advances LIBOR Loans or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such any Lender, increases the cost to such any Lender or its Eurodollar Lending Office LIBOR lending office of making or maintaining any Eurodollar Rate Advance LIBOR Loan or in respect of any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Revolving Note evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate Advances LIBOR Loans or reduces the amount of any sum received or receivable by such any Lender or its Eurodollar Lending Office LIBOR lending office with respect to any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate Advances LIBOR Loans (assuming such Lender’s Eurodollar Lending Office 's LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office 's LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market); provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) 14.1.3 If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office LIBOR lending office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLIBOR Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar RateLIBOR Basis, and Lender shall so notify Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances LIBOR Loans shall be suspended for the duration of such illegality or impossibility and the Administrative Agent Lender forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances's LIBOR Loans, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances Loans on either (i1) the last day of the Eurodollar LIBOR Loan Period(s) applicable to such Eurodollar Rate Advances LIBOR Loans if such Lender lender may lawfully continue to maintain and fund such Eurodollar Rate Advances LIBOR Loans to such day(s) or (ii2) immediately if such Lender lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances LIBOR Loans to such day(s). Each Lender agrees , provided that in such event the conversion shall not be subject to endeavor promptly to notify Borrower payment of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(under Section 2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender Bank any reserve or comparable requirement (including any emergency, --------- supplemental or other reserve) with respect to the Eurodollar Obligations of that LenderBank, other than Borrower or the Eurodollar Reserve Percentage, relevant Co-Borrower shall pay that Lender Bank within five (5) days Banking Days after demand all amounts necessary to compensate such Lender Bank (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand)requirements. Any Lender’s The Bank's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender Bank attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes --------- imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” ," and (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by available under applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any --------- reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender Bank or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender Bank claiming compensation compensa- tion under this subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful or impossible for such Lender Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, Advance or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank shall so notify the Administrative Agent, then such Lender’s Bank's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders Banks and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Bank's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender Bank may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender Bank may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be -------- subject to payment of a prepayment fee under clause (e) of this Section. Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender that Bank to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan or Advance, such Lender Bank shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Bank whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Bank in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders Banks advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the LendersBanks, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Banks to make any future Eurodollar Rate Advances shall be suspendedsuspended unless (but only if clause (2) above is the ------ basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced Eurodollar Margin with respect to all Eurodollar Rate Loans made during such period.
(e1) Upon payment or prepayment the principal amount of any the Eurodollar Rate Advance on a day other than prepaid or not borrowed or prepaid, as the case may be, times [the number of ----- days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Eurodollar Period Period], divided by 360, times the applicable Interest ---------- ----- Differential (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon provided that the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% product of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for foregoing formula must -------- be a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtainedpositive number); plusplus ----
(2) all out-of-pocket expenses incurred by such Lender the Bank reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s Bank's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender Bank to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. Any request for compensation by a Lender Bank under this Section shall set forth the basis upon which it has been determined that such an amount is due from BorrowerBorrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Bank.
(g) If any Bank claims compensation or is excused from making or continuing Eurodollar Rate Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Eurodollar Banking Days' prior notice to the Administrative Agent and such LenderBank and upon payment in full of the amounts provided for in this Section through the date of such payment plus any ---- prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected Eurodollar Rate Advances of such Bank or request that such Eurodollar Rate Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Bank, that Bank will be subject to removal in accordance with Section 11.27; provided that Borrower and the Co-Borrowers shall have paid -------- such amount to that Bank and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Bank in writing of their intent to so remove the Bank.
Appears in 1 contract
Samples: Term Loan Agreement (MGM Grand Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar CircumstanceCircumstance shall:
(i) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Revolving Advance Notes or Term Loan Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to of the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Revolving Advance Notes or Term Loan Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding excluding, with respect to each Creditor, and any Affiliate or Eurodollar Lending Office thereof, (A) taxes imposed on or measured in whole or in part by its overall net income by (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” capital and franchise taxes imposed on it, (B) any withholding taxes or other taxes based on gross net income imposed (other than withholding taxes and taxes based on net income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by the United States of America any Governmental Agency) or (C) any withholding taxes or other taxes based on net income for any period with respect to which it has failed to provide Borrower Borrowers with the appropriate form or forms required by Section 11.2111.22, to the extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, but excluding the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition materially affecting any Eurodollar Rate Advance, any of its Revolving Advance Notes or Term Loan Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise materially affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Revolving Advance Notes or Term Loan Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Revolving Advance Notes or Term Loan Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by provided that such Lender makes demand upon Borrowers (with a copy to the Administrative Agent)) within 90 days following the date upon which it becomes aware of any such event or circumstance, Borrower Borrowers shall within five Business Days pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); . Each of the Borrowers hereby jointly and severally (but as between Borrowers, ratably) indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within five Business Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions provided that Borrower shall not be obligated to pay for or contemplated herein, as a result of the existence or occurrence of any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demandSpecial Eurodollar Circumstance. A statement of any Lender claiming compensation under this subsection clause and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Lender agrees to endeavor promptly to notify Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to this Section 3.8 and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the judgment of such Lender, otherwise be materially disadvantageous to such Lender. If any Lender claims compensation under this Section 3.8, Borrowers may at any time, upon at least four Eurodollar Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section 3.8 through the date of such payment plus any prepayment fee required by Section 3.8(d), pay in full the affected Eurodollar Rate Advances of such Lender or request that such Eurodollar Rate Advances be converted to Base Rate Advances. To the extent that any Lender which receives any payment from Borrowers under this Section 3.8 later receives any funds which are identifiable as a reimbursement or rebate of such amount from any other Person, such Lender shall promptly refund such amount to Borrowers.
(cb) If, after the date hereof, If the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful unlawful, impossible or impossible impracticable for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality illegality, impossibility or impossibility impracticability and the Administrative Agent forthwith shall give notice thereof to the other Lenders and BorrowerBorrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Interest Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(d). Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Effective Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this SectionSection 3.8(b), and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section 3.8(b) shall promptly notify the Administrative Agent and Borrower Borrowers of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Interest Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent Agent:
(A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Interest Period, or ; or
(B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower Borrowers and the Lenders, whereupon until the Administrative Agent notifies Borrower Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to specify a Base Rate Loan.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance Advance, (other than as the result of a conversion required under Section 3.1(d) or 3.8(b)), on a day other than the last day in the applicable Eurodollar Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of any Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower Borrowers shall pay to the appropriate Lender within five (5) Banking Business Days after demand a prepayment fee or failure to borrow fee, as the case may be be, (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds quotient of:
(iiA) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on number of days between the date of the prepayment or failure to borrow borrow, as applicable, and ending on the last day in the applicable Interest Period; divided by
(B) 360, times the applicable Interest Differential (provided that the product of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2ii) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section 3.8(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Samples: Additional Credit Agreement (Harrahs Entertainment Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations liabilities or assets consisting of or including eurocurrency funds or deposits (currently known as "Euro liabilities") of that Lender, other than the Eurodollar Reserve Percentage, then Borrower shall pay that Lender within five (5) days Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar 's LIBOR Lending Office had funded 100% of its Eurodollar Rate Advances LIBOR Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety days preceding the date of such demand). Any Each Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar LIBOR Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate LIBOR Advance, any of its Notes evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate LIBOR Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate LIBOR Advance, any of its Notes evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate AdvancesLIBOR Advances (provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety days preceding the date of such demand or is attributable to periods prior to the date which is ninety days preceding the date of such demand), excluding (Ai) taxes imposed on or measured in whole or in part by its the relevant Lender's overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar LIBOR Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) without duplication as to Section 3.9(a), shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar LIBOR Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar LIBOR Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate LIBOR Advance, any of its Notes evidencing Eurodollar Rate AdvancesLIBOR Loans, its obligation to make Eurodollar Rate LIBOR Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar LIBOR Lending Office of making or maintaining any Eurodollar Rate LIBOR Advance or in respect of any Eurodollar Rate LIBOR Advance, any of its Notes evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar LIBOR Lending Office with respect to any Eurodollar Rate LIBOR Advance, any of its Notes evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate LIBOR Advances (assuming such Lender’s Eurodollar 's LIBOR Lending Office had funded 100% of its Eurodollar Rate Advances LIBOR Advance in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar 's LIBOR Lending Office had funded 100% of its Eurodollar Rate Advances LIBOR Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar LIBOR Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLIBOR Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon LIBOR, and such Lender shall so notify the Eurodollar RateAdministrative Agent, then such Lender’s 's obligation to make Eurodollar Rate LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate 's LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Interest Period(s) applicable to such Eurodollar Rate LIBOR Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate LIBOR Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate LIBOR Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.9(e). Each Lender agrees to endeavor promptly to notify Borrower of any event occurring after the Closing Date of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLIBOR Loan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate LIBOR Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLIBOR Loan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Interest Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate LIBOR as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Interest Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate LIBOR Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate LIBOR Advance (other than as the result of a conversion required under Section 3.9(c)), on a day other than the last day in the applicable Eurodollar Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Sections 2.1(a) or (b) to make an Advance or the suspension of any Lender's obligation to make or maintain LIBOR Loans under Section 2.1(a)3.9) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances LIBOR Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender within five (5) Banking ten Business Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate LIBOR Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount LIBOR Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day sum of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on number of days from and including the date of the prepayment or failure to borrow and ending on borrow, as applicable, to but excluding the last day in the applicable Interest Period, divided by 360, times the applicable Interest Differential (provided that the product of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-out of pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this SectionSection 3.9, and agrees to designate a different Eurodollar LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section 3.9 shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including INCLUDING any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand)requirements. Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding EXCLUDING (Ai) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” ," and (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including INCLUDING any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements require ments against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, Advance or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), PROVIDED that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Datedate hereof, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan or Advance, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Euro dollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.circumstances
Appears in 1 contract
Samples: Loan Agreement (Anchor Gaming)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized orga nized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross net income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(cb) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain main tain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(d). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Euro dollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.8(b) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)2.1 to make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such the Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(23) all reasonable out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(fe) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar CircumstanceCircumstance shall:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to of the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding EXCLUDING, with respect to each Creditor, and any Affiliate or Eurodollar Lending Office thereof, (Ai) taxes imposed on or measured in whole or in part by its overall net income by or capital and franchise taxes imposed on it, (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (Bii) any withholding taxes or other taxes based on gross net income imposed (other than withholding taxes and taxes based on net income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by the United States of America any Governmental Agency) or (iii) any withholding taxes or other taxes based on net income for any period with respect to which it has failed to provide Borrower Borrowers with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including INCLUDING, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, BUT EXCLUDING the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition materially affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesNotes, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise materially affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by PROVIDED THAT such Lender makes demand upon Borrowers (with a copy to the Administrative Agent)) within 90 days following the date upon which it becomes aware of any such event or circumstance, Borrower Borrowers shall within five Business Days pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); . Each of the Borrowers hereby jointly and severally (but as between Borrowers, ratably) indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within five Business Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions provided that Borrower shall not be obligated to pay for or contemplated herein, as a result of the existence or occurrence of any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demandSpecial Eurodollar Circumstance. A statement of any Lender claiming compensation under this subsection clause and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Lender agrees to endeavor promptly to notify Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to this Section and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the judgment of such Lender, otherwise be materially disadvantageous to such Lender. If any Lender claims compensation under this Section, Borrowers may at any time, upon at least four Eurodollar Business Days' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment PLUS any prepayment fee required by Section 3.7(d), pay in full the affected Eurodollar Rate Advances of such Lender or request that such Eurodollar Rate Advances be converted to Base Rate Advances. To the extent that any Lender which receives any payment from Borrowers under this Section later receives any funds which are identifiable as a reimbursement or rebate of such amount from any other Person, such Lender shall promptly refund such amount to Borrowers.
(cb) If, after the date hereof, If the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful unlawful, impossible or impossible impracticable for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality illegality, impossibility or impossibility impracticability and the Administrative Agent forthwith shall give notice thereof to the other Lenders and BorrowerBorrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), PROVIDED that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.7(d). Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this SectionSection 3.7(b), and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section 3.7(b) shall promptly notify the Administrative Agent and Borrower Borrowers of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower Borrowers and the Lenders, whereupon until the Administrative Agent notifies Borrower Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to specify a Base Rate Loan.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance Advance, (OTHER THAN as the result of a conversion required under Section 3.1(d) or 3.7(b)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of any Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower Borrowers shall pay to the appropriate Lender within five (5) Banking Business Days after demand a prepayment fee or failure to borrow fee, as the case may be be, (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum SUM of:
(1) principal amount of the amount, if any, by which (i) the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, TIMES the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day quotient of the applicable Eurodollar Period exceeds (iiA) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on number of days between the date of the prepayment or failure to borrow borrow, as applicable, and ending on the last day of in the applicable Eurodollar Period Period, DIVIDED BY (orB) 360, if no deposit rate quotation is available for such period, for TIMES the most comparable period for which applicable Interest Differential (PROVIDED that the product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plusPLUS
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section 3.7(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations liabilities or assets ---------- consisting of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay or including Eurocurrency funds or deposits (currently known as "Euro liabilities") of that Lender within five (5) days Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar 's LIBOR Lending Office had funded 100% of its Eurodollar Rate Advances LIBOR Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that -------- Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (A) taxes imposed on or measured in whole or in part by its overall net income by (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect without duplication as to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.213.8(a), to the extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar LIBOR Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar LIBOR Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate LIBOR Advance, any of its Notes evidencing Eurodollar Rate AdvancesXXXXX Xxxxx, its obligation xxx xbligation to make Eurodollar Rate LIBOR Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar LIBOR Lending Office of making or maintaining any Eurodollar Rate LIBOR Advance or in respect of any Eurodollar Rate LIBOR Advance, any of its Notes evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar LIBOR Lending Office with respect to any Eurodollar Rate LIBOR Advance, any of its Notes evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate LIBOR Advances (assuming such Lender’s Eurodollar 's LIBOR Lending Office had funded 100% of its Eurodollar Rate Advances LIBOR Advance in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar 's LIBOR Lending Office had funded 100% of its Eurodollar Rate Advances LIBOR Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar LIBOR Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLIBOR Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate 's LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Interest Period(s) applicable to such Eurodollar Rate LIBOR Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate LIBOR Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate LIBOR Advances to such day(s), provided that in such event the conversion shall not be -------- subject to payment of a prepayment fee under Section 3.8(e). Each Lender agrees to endeavor promptly to notify Borrower of any event occurring after the Closing Date of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLIBOR Loan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate LIBOR Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLIBOR Loan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Interest Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Interest Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate LIBOR Advances shall be suspended.
(e1) Upon payment the principal amount of the LIBOR Advance prepaid or not borrowed, as the case may be, times the sum of the number of days from and including the date of prepayment of any Eurodollar Rate Advance on a day other than or failure to borrow, as applicable, to but excluding the last day in the applicable Eurodollar Period Interest Period, divided by 360, times the applicable Interest Differential (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon provided that the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% product of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for foregoing formula must be a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-out of pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this SectionSection 3.8, and agrees to designate a different Eurodollar LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section 3.8 shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Samples: Loan Agreement (Station Casinos Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations hereunder of that Lender, other than the Eurodollar Reserve Percentage, Borrower Borrowers shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Loan in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand)requirements. Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate AdvanceLoan or any Money Market LIBOR Loan, any of its Notes evidencing Eurodollar Rate Advances Loans or Money Market LIBOR Loans or its obligation to make Eurodollar Rate AdvancesLoans or Money Market LIBOR Loans, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance Loan or any Money Market LIBOR Loan or any other amounts due under this Agreement in respect of any Eurodollar Rate AdvanceLoan or any Money Market LIBOR Loan, any of its Notes evidencing Eurodollar Rate Advances Loans or Money Market LIBOR Loans or its obligation to make Eurodollar Rate AdvancesLoans or Money Market LIBOR Loans, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income or net worth by (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower the Borrowers with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate AdvanceLoan or Money Market LIBOR Loan, any of its Notes evidencing Eurodollar Rate AdvancesLoans or Money Market LIBOR Loans, its obligation to make Eurodollar Rate Advances Loans or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost in a material amount to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance Loan or Money Market LIBOR Loan or in respect of any Eurodollar Rate AdvanceLoan or Money Market LIBOR Loan, any of its Notes evidencing Eurodollar Rate Advances Loans or Money Market LIBOR Loans or its obligation to make Eurodollar Rate Advances Loans or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate AdvanceLoan or any Money Market LIBOR Loan, any of its Notes evidencing Eurodollar Rate Advances Loans or Money Market LIBOR Loans or its obligation to make Eurodollar Rate Advances Loans or Money Market LIBOR Loans (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Loan or Money Market LIBOR Loan in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), the applicable Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Loan or Money Market LIBOR Loan in the Designated Eurodollar Market); provided provided, that the applicable Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 one hundred and eighty (180) days preceding the date of such demand or is attributable to periods prior to the date which is 180 one hundred and eighty (180) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan or Money Market LIBOR Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances Loans shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrowerthe Borrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate AdvancesLoans and Money Market LIBOR Loans, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances Loans on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances Loans if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances Loans to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances Loans to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.7(e). Each Lender agrees to endeavor promptly to notify the applicable Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance Loan for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate AdvanceLoan. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances Loans has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower the Borrowers of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan or Money Market LIBOR Loan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Interest Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Interest Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate AdvancesLoans or Money Market LIBOR Loans; then the Administrative Agent forthwith shall give notice thereof to Borrower the Borrowers and the Lenders, whereupon until the Administrative Agent notifies Borrower the Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances Loans shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance Loan or Money Market LIBOR Loan (including as the result of a conversion required under Section 3.7(c)) on a day other than the last day in the applicable Eurodollar Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of a Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request Notice of Syndicated Loan or for Borrowinga Money Market LIBOR Loan in any Notice of Money Market Loan, such Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance Loan or Money Market LIBOR Loan, as the case may be, had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amountpresent value of the excess, if any, by which of (i) the additional interest that would have accrued on the amount prepaid or not borrowed at the applicable Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Interest Period exceeds over (ii) the interest that such the Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Interest Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained), discounted at the Federal Funds Rate; plus
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower the Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from the applicable Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar CircumstanceCircumstance shall:
(i) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to of the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding excluding, with respect to each Creditor, and any Affiliate or Eurodollar Lending Office thereof, (A) taxes imposed on or measured in whole or in part by its overall net income by (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” capital and franchise taxes imposed on it, (B) any withholding taxes or other taxes based on gross net income imposed (other than withholding taxes and taxes based on net income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by the United States of America any Governmental Agency) or (C) any withholding taxes or other taxes based on net income for any period with respect to which it has failed to provide Borrower Borrowers with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, but excluding the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition materially affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise materially affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by provided that such Lender makes demand upon Borrowers (with a copy to the Administrative Agent)) within 90 days following the date upon which it becomes aware of any such event or circumstance, Borrower Borrowers shall within five Business Days pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); . Each of the Borrowers hereby jointly and severally (but as between Borrowers, ratably) indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within five Business Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions provided that Borrower shall not be obligated to pay for or contemplated herein, as a result of the existence or occurrence of any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demandSpecial Eurodollar Circumstance. A statement of any Lender claiming compensation under this subsection clause and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Lender agrees to endeavor promptly to notify Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to this Section 3.8 and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the judgment of such Lender, otherwise be materially disadvantageous to such Lender. If any Lender claims compensation under this Section 3.8, Borrowers may at any time, upon at least four Eurodollar Business Days' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section 3.8 through the date of such payment plus any prepayment fee required by Section 3.8(d), pay in full the affected Eurodollar Rate Advances of such Lender or request that such Eurodollar Rate Advances be converted to Base Rate Advances. To the extent that any Lender which receives any payment from Borrowers under this Section 3.8 later receives any funds which are identifiable as a reimbursement or rebate of such amount from any other Person, such Lender shall promptly refund such amount to Borrowers.
(cb) If, after the date hereof, If the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful unlawful, impossible or impossible impracticable for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality illegality, impossibility or impossibility impracticability and the Administrative Agent forthwith shall give notice thereof to the other Lenders and BorrowerBorrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Interest Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(d). Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this SectionSection 3.8(b), and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section 3.8(b) shall promptly notify the Administrative Agent and Borrower Borrowers of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Interest Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent Agent
(A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Interest Period, or or
(B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower Borrowers and the Lenders, whereupon until the Administrative Agent notifies Borrower Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to specify a Base Rate Loan.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance Advance, (other than as the result of a conversion required under Section 3.1(d) or 3.8(b)), on a day other than the last day in the applicable Eurodollar Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of any Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower Borrowers shall pay to the appropriate Lender within five (5) Banking Business Days after demand a prepayment fee or failure to borrow fee, as the case may be be, (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds quotient of
(iiA) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on number of days between the date of the prepayment or failure to borrow borrow, as applicable, and ending on the last day in the applicable Interest Period, divided by
(B) 360, times the applicable Interest Differential (provided that the product of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2C) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section 3.8(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar CircumstanceCircumstance shall:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to of the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding excluding, with respect to each Creditor, and any Affiliate or Eurodollar Lending Office thereof, (Ai) taxes imposed on or measured in whole or in part by its overall net income by or capital and franchise taxes imposed on it, (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (Bii) any withholding taxes or other taxes based on gross net income imposed (other than withholding taxes and taxes based on net income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by the United States of America any Governmental Agency) or (iii) any withholding taxes or other taxes based on net income for any period with respect to which it has failed to provide Borrower Borrowers with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, but excluding the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition materially affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise materially affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by provided that such Lender makes demand upon Borrowers (with a copy to the Administrative Agent)) within 90 days following the date upon which it becomes aware of any such event or circumstance, Borrower Borrowers shall within five Business Days pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); . Each of the Borrowers hereby jointly and severally (but as between Borrowers, ratably) indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within five Business Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions provided that Borrower shall not be obligated to pay for or contemplated herein, as a result of the existence or occurrence of any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demandSpecial Eurodollar Circumstance. A statement of any Lender claiming compensation under this subsection clause and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Lender agrees to endeavor promptly to notify Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to this Section and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the judgment of such Lender, otherwise be materially disadvantageous to such Lender. If any Lender claims compensation under this Section, Borrowers may at any time, upon at least four Eurodollar Business Days' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment PLUS any prepayment fee required by Section 3.8(d), pay in full the affected Eurodollar Rate Advances of such Lender or request that such Eurodollar Rate Advances be converted to Base Rate Advances. To the extent that any Lender which receives any payment from Borrowers under this Section later receives any funds which are identifiable as a reimbursement or rebate of such amount from any other Person, such Lender shall promptly refund such amount to Borrowers.
(cb) If, after the date hereof, If the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful unlawful, impossible or impossible impracticable for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality illegality, impossibility or impossibility impracticability and the Administrative Agent forthwith shall give notice thereof to the other Lenders and BorrowerBorrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), PROVIDED that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(d). Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this SectionSection 3.8(b), and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section 3.8(b) shall promptly notify the Administrative Agent and Borrower Borrowers of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower Borrowers and the Lenders, whereupon until the Administrative Agent notifies Borrower Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to specify a Base Rate Loan.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance Advance, (OTHER THAN as the result of a conversion required under Section 3.1(d) or 3.8(b)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of any Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower Borrowers shall pay to the appropriate Lender within five (5) Banking Business Days after demand a prepayment fee or failure to borrow fee, as the case may be be, (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum SUM of:
(1) principal amount of the amount, if any, by which (i) the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day quotient of the applicable Eurodollar Period exceeds (iiA) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on number of days between the date of the prepayment or failure to borrow borrow, as applicable, and ending on the last day of in the applicable Eurodollar Period Period, divided by (orB) 360, if no deposit rate quotation is available for such period, for times the most comparable period for which applicable Interest Differential (provided that the product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section 3.8(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender Holder any reserve or comparable requirement (including INCLUDING any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that LenderHolder, other than the Eurodollar Reserve Percentage, Borrower Lessee shall pay that Lender Holder within five (5) days Business Days after demand all amounts necessary to compensate such Lender Holder (determined as though such Lender’s Holder's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Certificate Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided PROVIDED, that Borrower Lessee shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any Lender’s The Holder's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender Holder or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Certificate Advance, any of its Notes Certificate evidencing Eurodollar Rate Certificate Advances or its obligation to make Eurodollar Rate Certificate Advances, or shall change the basis of taxation of payments to any Lender Holder attributable to the principal of or interest on any Eurodollar Rate Certificate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Certificate Advance, any of its Notes Certificate evidencing Eurodollar Rate Certificate Advances or its obligation to make Eurodollar Rate AdvancesCertificate Advances (PROVIDED, excluding that Lessee shall not be obligated to pay any such amount which arose prior to the date which is ninety (A90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand), EXCLUDING (i) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower Lessee with the appropriate form or forms required by Section 11.218.6, to the extent such forms are then required by available under applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including INCLUDING any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Holder or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender Holder or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Certificate Advance, any of its Notes Certificate evidencing Eurodollar Rate Certificate Advances, its obligation to make Eurodollar Rate Certificate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such LenderHolder, increases the cost to such Lender Holder or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Certificate Advance or in respect of any Eurodollar Rate Certificate Advance, any of its Notes Certificate evidencing Eurodollar Rate Certificate Advances or its obligation to make Eurodollar Rate Certificate Advances or reduces the amount of any sum received or receivable by such Lender Holder or its Eurodollar Lending Office with respect to any Eurodollar Rate Certificate Advance, any of its Notes Certificate evidencing Eurodollar Rate Certificate Advances or its obligation to make Eurodollar Rate Certificate Advances (assuming such Lender’s Holder's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Certificate Advance in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender Holder (with a copy to the Administrative AgentTrustee), Borrower Lessee shall pay to such Lender Holder such additional amount or amounts as will compensate such Lender Holder for such increased cost or reduction (determined as though such Lender’s Holder's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Certificate Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender Holder claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any LenderHolder, make it unlawful or impossible for such Lender Holder or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesCertificate Advance, or materially restrict the authority of such Lender Holder to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Holder shall so notify the Trustee, then such Lender’s Holder's obligation to make Eurodollar Rate Certificate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent Trustee forthwith shall give notice thereof to the other Lenders Holders and BorrowerLessee. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Holder's Eurodollar Rate Certificate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Certificate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Certificate Advances if such Lender Holder may lawfully continue to maintain and fund such Eurodollar Rate Certificate Advances to such day(s) or (ii2) immediately if such Lender Holder may not lawfully continue to fund and maintain such Eurodollar Rate Certificate Advances to such day(s), PROVIDED that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender Holder agrees to endeavor promptly to notify Borrower Lessee of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender that Holder to notify Borrower as set forth in the first sentence of Trustee under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderHolder, otherwise be materially disadvantageous to such LenderHolder. In the event that any Lender Holder is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Certificate Advance, such Lender Holder shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Certificate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Certificate Advance. In the event that any Lender’s Any Holder whose obligation to make Eurodollar Rate Certificate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent Trustee and Borrower Lessee of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesCertificate Advance:
(i1) the Administrative Agent reasonably determines Requisite Holders advise that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersHolders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Holder in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders Holders advise the Administrative Agent Trustee that the Eurodollar Rate as determined by the Administrative Agent Trustee (Ai) does not represent the effective pricing to such Lenders Holders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Holders of making the applicable Eurodollar Rate Certificate Advances; then the Administrative Agent Trustee forthwith shall give notice thereof to Borrower Lessee and the LendersHolders, whereupon until the Administrative Agent Trustee notifies Borrower Lessee that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Holders to make any future Eurodollar Rate Certificate Advances shall be suspended. Upon delivery by the Trustee to Lessee of notice that the circumstances giving rise to such suspension no longer exist, any Alternate Base Rate Certificate Advance into which a Eurodollar Rate Certificate Advance may have been converted as a result of any such suspension shall be converted into a Eurodollar Rate Certificate Advance or Eurodollar Rate Certificate Advances of one-, two- and/or three-months period or periods so as (and on such dates as) to permit the outstanding Advances to be Eurodollar Rate Certificate Advances of such Eurodollar Periods and commencing on such Eurodollar Period Commencement Dates as would have existed if such conversion had not occurred.
(e) Upon payment or prepayment of any Eurodollar Rate Certificate Advance (OTHER THAN as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower Lessee shall pay to the appropriate Lender Holder within five ten (510) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Certificate Advance had been funded in the Designated Eurodollar Market) ), equal to the sum ofSUM OF:
(1) the amount, if any, by which (i) the additional interest would have accrued on the principal amount prepaid or not borrowed at of the Eurodollar Rate plus Advance prepaid TIMES the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through number of days from and including the date of prepayment to but excluding the last day of in the applicable Eurodollar Period exceeds Period, DIVIDED BY 360, TIMES the applicable Interest Differential (ii) PROVIDED that the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date product of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which foregoing formula must be a deposit rate quotation may be obtainedpositive number); plusPLUS
(2) all out-of-pocket expenses incurred by such Lender the Holder reasonably attributable to such payment, prepayment or failure to borrowprepayment. Each Lender’s Holder's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender Holder agrees to endeavor promptly to notify Borrower Lessee of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender Holder to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such LenderHolder, otherwise be materially disadvantageous to such LenderHolder. Any request for compensation by a Lender Holder under this Section shall set forth the basis upon which it has been determined that such an amount is due from BorrowerLessee, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lenderthe Holder.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (A) taxes imposed on or measured in whole or in part by its overall net income by (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any LenderXxxxxx’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender Bank attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding excluding, in the case of each Bank, the Administrative Agent, each Co-Agent and each Eligible -50- Assignee, and any Affiliate or Eurodollar Lending Office thereof, (Ai) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts or capital and franchise taxes imposed on it, by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " (unless it would not be doing business in such jurisdiction (or political subdivision thereof) absent the transactions contemplated hereby), (ii) any withholding taxes or other taxes based on gross income imposed by the United States of America (other than withholding taxes and taxes based on gross income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by any Governmental Agency) or (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, but excluding the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender Bank or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower shall pay to such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); . Borrower hereby indemnifies each Bank against, and agrees to hold each Bank harmless from and reimburse such Bank within ten (10) Banking Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, reasonable legal fees and damages incurred or sustained by each Bank in connection with this Agreement, or any of the rights, obligations or transac- tions provided that Borrower shall not be obligated to pay for or contemplated herein, as a direct result of the existence or occurrence of any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demandSpecial Eurodollar Circumstance. A statement of any Lender Bank claiming compensation under this subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Bank to compensation pursuant to this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Bank, otherwise be materially disadvantageous to such Bank. If any Bank claims compensation under this Section, Borrower may at any time, upon at least four (4) Eurodollar Banking Days' prior notice to the Administrative Agent and such Bank and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee required by Section 3.8(d), pay in full the affected Eurodollar Rate Advances of such Bank or request that such Eurodollar Rate Advances be converted to Alternate Base Rate Advances.
(cb) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful or impossible for such Lender Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank shall so notify the Administrative Agent, then such Lender’s Bank's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders Banks and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Bank's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances with Interest Periods corresponding to the Eurodollar Loans of which such Eurodollar Rate Advances were a part on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender Bank may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender Bank may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(d). Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender that Bank to notify Borrower as set forth in the first sentence of Administrative Agent under this SectionSection 3.8(b), and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender Bank shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Bank whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section 3.8(b) shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Bank in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders Banks advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the LendersBanks, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Banks to make any future Eurodollar Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to specify an Alternate Base Rate Loan.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.1(e) or 3.8(b)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant Bank to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender Bank within five ten (510) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times [the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day number of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on days between the date of the prepayment or failure to borrow borrow, as applicable, and ending on the last day of in the applicable Eurodollar Period Period], divided by 360, times the applicable Interest Differential (or, if no deposit rate quotation is available for such period, for provided that the most comparable period for which product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-pocket expenses incurred by such Lender the Bank reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s Bank's determination of the amount of any prepayment fee payable under this Section 3.8(d) shall be conclusive in the absence of manifest error.
(fe) Each Lender agrees If Borrower is required to endeavor promptly to notify Borrower of (and does) pay any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate Bank a different Eurodollar Lending Office if such designation will avoid the need for or reduce the material amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that 3.8, Borrower may cause such an amount is due from Borrower, Bank(s) to be removed as a calculation of the amount due, and a certification that the corresponding costs have been incurred by such LenderBank(s) under this Agreement pursuant to Section 11.25.
Appears in 1 contract
Samples: Loan Agreement (Mirage Resorts Inc)
Eurodollar Costs and Related Matters. (a) 14.1.1 In the event that after the date hereof any Governmental Agency Authority imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations liabilities (as defined in Regulation D or any comparable regulation of that any Governmental Authority having jurisdiction over any Lender, other than the Eurodollar Reserve Percentage) of any Lender, Borrower shall pay that such Lender within five (5) days Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any Such Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) 14.1.2 If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(ia) shall subject any Lender or its Eurodollar Lending Office LIBOR lending office to any tax, duty or other charge or cost with respect to any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate AdvancesLIBOR Loans, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance LIBOR Loan or any other amounts due under this Agreement in respect of any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate AdvancesLIBOR Loans, excluding (A) taxes imposed on or measured in whole or in part by its overall net income by (1i) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office LIBOR lending office or (2ii) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws”;
(iib) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending OfficeLIBOR lending office); or
(iiic) shall impose on any Lender or its Eurodollar Lending Office LIBOR lending office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advancessuch LIBOR Loan(s), its obligation to make Eurodollar Rate Advances LIBOR Loans or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such any Lender, increases the cost to such any Lender or its Eurodollar Lending Office LIBOR lending office of making or maintaining any Eurodollar Rate Advance LIBOR Loan or in respect of any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Revolving Note evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate Advances LIBOR Loans or reduces the amount of any sum received or receivable by such any Lender or its Eurodollar Lending Office LIBOR lending office with respect to any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate Advances LIBOR Loans (assuming such Lender’s Eurodollar Lending Office LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market); provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) 14.1.3 If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office LIBOR lending office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLIBOR Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar RateLIBOR Basis, and such Lender shall so notify Agent, then such Lender’s obligation to make Eurodollar Rate Advances LIBOR Loans shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate AdvancesLIBOR Loans, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances Loans on either (ia) the last day of the Eurodollar LIBOR Loan Period(s) applicable to such Eurodollar Rate Advances LIBOR Loans if such Lender lender may lawfully continue to maintain and fund such Eurodollar Rate Advances LIBOR Loans to such day(s) or (iib) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances LIBOR Loans to such day(s). Each Lender agrees , provided that in such event the conversion shall not be subject to endeavor promptly to notify Borrower payment of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee under Sections 3.5 or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error12.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Samples: Loan Agreement (Dts, Inc.)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar CircumstanceCircumstance shall:
(i) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Committed Advance Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to of the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Committed Advance Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding excluding, with respect to each Creditor, and any Affiliate or Eurodollar Lending Office thereof, (A) taxes imposed on or measured in whole or in part by its overall net income by (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” capital and franchise taxes imposed on it, (B) any withholding taxes or other taxes based on gross net income imposed (other than withholding taxes and taxes based on net income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by the United States of America any Governmental Agency) or (C) any withholding taxes or other taxes based on net income for any period with respect to which it has failed to provide Borrower Borrowers with the appropriate form or forms required by Section 11.2111.22, to the extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, but excluding the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition materially affecting any Eurodollar Rate Advance, any of its Committed Advance Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise materially affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Committed Advance Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Committed Advance Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by provided that such Lender makes demand upon Borrowers (with a copy to the Administrative Agent)) within 90 days following the date upon which it becomes aware of any such event or circumstance, Borrower Borrowers shall within five Business Days pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); . Each of the Borrowers hereby jointly and severally (but as between Borrowers, ratably) indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within five Business Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date for or contemplated herein, as a result of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including INCLUDING any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower Borrowers shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided PROVIDED, that Borrower Borrowers shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate AdvancesAdvances (PROVIDED, excluding that Borrowers shall not be obligated to pay any such amount which arose prior to the date which is ninety (A90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand), EXCLUDING (i) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower Borrowers with the appropriate form or forms required by Section 11.2114.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including INCLUDING any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and BorrowerBorrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), PROVIDED that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.7(e). Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Amendment Effective Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower Borrowers of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower Borrowers and the Lenders, whereupon until the Administrative Agent notifies Borrower Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (OTHER THAN as the result of a conversion required under Section 3.7(c)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower Borrowers (for a reason other than the breach by a Lender of its obligation pursuant to Sections 2.1(a) or 2.1(b) to make an Advance or the suspension of any Lender's obligation to make or maintain Eurodollar Rate Loans under Section 2.1(a)3.7) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower Borrowers shall pay to the appropriate Lender within five ten (510) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum SUM of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, TIMES [the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day number of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on days from and including the date of the prepayment or failure to borrow and ending on borrow, as applicable, to but excluding the last day of in the applicable Eurodollar Period Period], DIVIDED by 360, TIMES the applicable Interest Differential (or, if no deposit rate quotation is available for such period, for PROVIDED that the most comparable period for which product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
PLUS (2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Amendment Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this SectionSection 3.7, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section 3.7 shall set forth the basis upon which it has been determined that such an amount is due from BorrowerBorrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Samples: Reducing Revolving Loan Agreement (Station Casinos Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to Bank of the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding excluding, in the case of each Bank, the Agent, and each Eligible Assignee, and any Affiliate or Eurodollar Lending Office thereof, (Ai) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts or capital and franchise taxes imposed on it, by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " (unless it would not be doing business in such jurisdiction (or political subdivision thereof) absent the transactions contemplated hereby), (ii) any withholding taxes or other taxes based on gross income imposed by the United States of America (other than withholding taxes and taxes based on gross income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by any Governmental Agency after the date of this Agreement) or (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms -42- required by Section 11.2111.19, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, but excluding the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender Bank or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; to such Bank. If any Bank claims compensation under this Section, Borrower may at any time, upon at least four (4) Eurodollar Banking Days' prior notice to the Agent and the result of any such Bank and upon payment in full of the foregoing, as determined amounts provided for in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding this Section through the date of such demand or is attributable to periods prior to payment plus any prepayment fee required by Section 3.6(d), pay in full the date which is 180 days preceding the date affected Eurodollar Rate Advances of such demand. A statement of any Lender claiming compensation under this subsection shall Bank or request that such Eurodollar Rate Advances be conclusive in the absence of manifest errorconverted to Reference Rate Advances.
(cb) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful unlawful, impossible or impossible impracticable for such Lender Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank shall so notify the Agent, then such Lender’s Bank's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality illegality, impossibility or impossibility impracticability and the Administrative Agent forthwith shall give notice thereof to the other Lenders Banks and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Bank's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Reference Rate Advances with Interest Periods corresponding to the Eurodollar Loans of which such Eurodollar Rate Advances were a part on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender Bank may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender Bank may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.6(d). Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender that Bank to notify Borrower as set forth in the first sentence of Agent under this SectionSection 3.6(b), and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender Bank shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base a Reference Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base a Reference Rate Advance. In the event that any Lender’s Any Bank whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section 3.6(b) shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the -44- applicable amounts) are not being offered to any Lender Bank in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders Majority Banks advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the LendersBanks, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Banks to make any future Eurodollar Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to specify a Reference Rate Loan.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance Advance, (other than as the result of a conversion required under Section 3.6(b)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant Bank to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender Bank within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be be, (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) principal amount of the amount, if any, by which (i) the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day case may be, times [number of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on days between the date of the prepayment or failure to borrow borrow, as applicable, and ending on the last day of in the applicable Eurodollar Period Period], divided by 360, times the applicable Interest Differential (or, if no deposit rate quotation is available for such period, for provided that the most comparable period for which product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-pocket expenses incurred by such Lender the Bank reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s Bank's determination of the amount of any prepayment fee payable under this Section 3.6(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.. -45- 52
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided provided, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(e). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.8(c) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section Sections 2.1(a), 2.1(b) or 2.1(c) to make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such the Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(23) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Samples: Revolving Loan Agreement (Usec Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, --------- supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand)requirements. Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes --------- imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” ," and (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by available under applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any --------- reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, Advance or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall -------- not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan or Advance, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspendedsuspended unless (but only if clause (2) above is the ------ basis for such suspension) Borrower notifies the Administrative Agent in writing that Borrower elects to pay the Enhanced Eurodollar Margin with respect to all Eurodollar Rate Loans made during such period.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under clause (c) of this ----- ---- Section) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Advance in any Request for BorrowingLoan or Request for Competitive Bids, or upon the failure of Borrower to prepay a Eurodollar Rate Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(d), Borrower shall pay to the appropriate Lender within five (5) Banking ten Business Days after demand a prepayment fee, failure to borrow fee or failure to borrow prepay fee, as the case may be (determined as though 100% though
(1) the principal amount of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at or prepaid, as the Eurodollar Rate plus case may be, times [the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day number of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on ----- days from and including the date of the prepayment or failure to borrow and ending on or prepay, as applicable, to but excluding the last day of in the applicable Eurodollar Period Period], divided by 360, times the applicable Interest ---------- ----- Differential (or, if no deposit rate quotation is available for such period, for provided that the most comparable period for which product of the foregoing formula must -------- be a deposit rate quotation may be obtainedpositive number); plusplus ----
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
(g) If any Lender claims compensation or is excused from making or continuing Eurodollar Rate Loans or Advances under this Section:
(i) Borrower may at any time, upon at least four (4) Eurodollar Business Days' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee ---- (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected Eurodollar Rate Advances of such Lender or request that such Eurodollar Rate Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower becomes obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.26; provided that -------- Borrower shall have paid such amount to that Lender and that Borrower, within the thirty day period following the date of such payment, shall have notified that Lender in writing of Borrower's intent to so remove the Lender.
Appears in 1 contract
Samples: Loan Agreement (MGM Grand Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, --------- supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided provided, that Borrower shall -------- not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes --------- imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized orga nized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent ----- such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any --------- reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided provided, that Borrower shall not be -------- obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion -------- shall not be subject to payment of a prepayment fee under Section 3.6(e). ------ Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Euro dollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.6(c) on ----- ---- ------ a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to make an Advance) to ------ borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:: ---
(1) $250; plus ----
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that ---- amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such the Lender ------- could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
plus ---- (23) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) - or clause (b) of this Section, and agrees to designate a different - Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Samples: Revolving/Term Loan Agreement (Data Processing Resources Corp)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar CircumstanceCircumstance shall:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to of the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding excluding, with respect to each Creditor, and any Affiliate or Eurodollar Lending Office thereof, (Ai) taxes imposed on or measured in whole or in part by its overall net income by or capital and franchise taxes imposed on it, (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (Bii) any withholding taxes or other taxes based on gross net income imposed (other than withholding taxes and taxes based on net income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by the United States of America any Governmental Agency) or (iii) any withholding taxes or other taxes based on net income for any period with respect to which it has failed to provide Borrower Borrowers with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, but excluding the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition materially affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise materially affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by provided that such Lender makes demand upon Borrowers (with a copy to the Administrative Agent)) within 90 days following the date upon which it becomes aware of any such event or circumstance, Borrower Borrowers shall within five Business Days pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); . Each of the Borrowers hereby jointly and severally (but as between Borrowers, ratably) indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within five Business Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions provided that Borrower shall not be obligated to pay for or contemplated herein, as a result of the existence or occurrence of any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demandSpecial Eurodollar Circumstance. A statement of any Lender claiming compensation under this subsection clause and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Lender agrees to endeavor promptly to notify Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to this Section and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the judgment of such Lender, otherwise be materially disadvantageous to such Lender. If any Lender claims compensation under this Section, Borrowers may at any time, upon at least four Eurodollar Business Days' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment PLUS any prepayment fee required by Section 3.8(d), pay in full the affected Eurodollar Rate Advances of such Lender or request that such Eurodollar Rate Advances be converted to Base Rate Advances. To the extent that any Lender which receives any payment from Borrowers under this Section later receives any funds which are identifiable as a reimbursement or rebate of such amount from any other Person, such Lender shall promptly refund such amount to Borrowers.
(cb) If, after the date hereof, If the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful unlawful, impossible or impossible impracticable for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality illegality, impossibility or impossibility impracticability and the Administrative Agent forthwith shall give notice thereof to the other Lenders and BorrowerBorrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(d). Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this SectionSection 3.8(b), and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section 3.8(b) shall promptly notify the Administrative Agent and Borrower Borrowers of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower Borrowers and the Lenders, whereupon until the Administrative Agent notifies Borrower Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to specify a Base Rate Loan.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance Advance, (OTHER THAN as the result of a conversion required under Section 3.1(d) or 3.8(b)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of any Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower Borrowers shall pay to the appropriate Lender within five (5) Banking Business Days after demand a prepayment fee or failure to borrow fee, as the case may be be, (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum SUM of:
(1) principal amount of the amount, if any, by which (i) the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day quotient of the applicable Eurodollar Period exceeds (iiA) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on number of days between the date of the prepayment or failure to borrow borrow, as applicable, and ending on the last day of in the applicable Eurodollar Period Period, divided by (orB) 360, if no deposit rate quotation is available for such period, for times the most comparable period for which applicable Interest Differential (provided that the product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section 3.8(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender after the Closing Date any reserve or comparable requirement (including any emergency, supplemental or other reservereserve but --------- excluding any such amount included in the calculation of the Eurodollar Rate) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay -------- any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demanddemand and shall not be obligated to pay any such amount unless such Lender is generally making claims for compensation for such imposition against other similarly situated borrowers). Any Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (A) taxes imposed on or measured in whole or in part by its overall net income by (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” Income Taxes and (B) any --------- withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then ------------- required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the --------- Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office, but excluding any such amount included in the calculation of the Eurodollar Rate); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such -------- amount (i) which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demanddemand and shall not be obligated to pay any such amount unless such Lender is generally making claims for compensation for any of the items listed in clauses (i), (ii) or (iii) above against other similarly situated borrowers. Payments by Borrower hereunder shall not include (A) Income Taxes attributable to Lenders, and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America on any Lender for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then ------------- required by applicable Laws. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s 's affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s)) and any interest accrued up to the date of such conversion shall be paid on the next Quarterly Payment Date. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s 's obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.. Each Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the circumstances described in clause (d)(ii) above, and the Administrative Agent shall promptly notify Borrower when the circumstances described in clause (d)(i) above no longer apply and shall promptly notify Borrower when the Requisite Lenders have notified the Administrative Agent of the cessation of the circumstances described in clause (d)(ii) above. Upon such notice from the Administrative Agent, the restrictions set forth in this subsection 3.6(d) shall no longer apply
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section ------- 2.1(a)) to borrow on the date or in the amount specified for a Borrowing ------ comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:: ---
(1) $250; plus ---- (2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate ---- Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the ------- interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.plus ----
Appears in 1 contract
Samples: Credit Agreement (West Marine Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts or capital and franchise taxes imposed on it, by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " (unless it would not be doing business in such jurisdiction (or political subdivision thereof) absent the trans actions contemplated hereby), (ii) any withholding taxes or other taxes based on gross income imposed by the United States of America (other than withholding taxes and taxes based on gross income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by any Governmental Agency) or (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable LawsLaws (all such excluded taxes, assessments and other charges being hereinafter referred to as "Excluded Taxes");
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, but excluding the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance Loans or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate -45- 52 Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); . Borrower hereby indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within ten (10) Banking Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, reasonable legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions provided that Borrower shall not be obligated to pay for or contemplated herein, as a direct result of the existence or occurrence of any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demandSpecial Eurodollar Circumstance. A statement of any Lender claiming compensation under this subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. If any Lender claims compensation under this Section, Borrower may at any time, upon at least three (3) Eurodollar Banking Days' prior notice to the Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee required by Section 3.7(d), pay in full the affected Eurodollar Rate Advances of such Lender or convert such Eurodollar Rate Advances to Alternate Base Rate Advances.
(cb) If, after the date hereof, If the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of applicable Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances with Eurodollar Periods corresponding to such Eurodollar Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.7(d). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Agent under this SectionSection 3.7(b), and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section 3.7(b) shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to specify an Alternate Base Rate Loan.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.7(b)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day quotient of the applicable Eurodollar Period exceeds (iiA) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on number of days between the date of the prepayment or failure to borrow borrow, as applicable, and ending on the last day of in the applicable Eurodollar Period Period, divided by (orB) 360, if no deposit rate quotation is available for such period, for times the most comparable period for which applicable Interest Differential (provided that the product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section 3.7(d) shall be conclusive in the absence of manifest error.
(fe) Each If Borrower is required to (and does) pay any Lender agrees to endeavor promptly to notify a material amount under this Section 3.7, provided that no Default or Event of Default then exists, Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle may cause such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by removed as a Lender under this Agreement pursuant to Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender11.23.
Appears in 1 contract
Samples: Revolving Loan Agreement (Central Financial Acceptance Corp)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender Bank any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that LenderBank, other than Borrower or the Eurodollar Reserve Percentage, relevant Co-Borrower shall pay that Lender Bank within five (5) days Banking Days after demand all amounts necessary to compensate such Lender Bank (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand)requirements. Any Lender’s The Bank's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender Bank attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” ," and (Biii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by available under applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender Bank or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender Bank claiming compensation under this subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful or impossible for such Lender Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, Advance or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank shall so notify the Administrative Agent, then such Lender’s Bank's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders Banks and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Bank's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender Bank may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender Bank may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender that Bank to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan or Advance, such Lender Bank shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Bank whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Bank in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders Banks advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the LendersBanks, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Banks to make any future Eurodollar Rate Advances shall be suspendedsuspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced Eurodollar Margin with respect to all Eurodollar Rate Loans made during such period.
(e) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant Bank to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Advance in any Request for BorrowingLoan, or upon the failure of Borrower or any Co-Borrower to prepay a Eurodollar Rate Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(e), Borrower and the Co-Borrowers shall pay to the appropriate Lender Bank within five (5) ten Banking Days after demand a prepayment fee, failure to borrow fee or failure to borrow prepay fee, as the case may be (determined as though 100% of the that Bank's Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) ), equal to the sum of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at or prepaid, as the Eurodollar Rate plus case may be, times [the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day number of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on days from and including the date of the prepayment or failure to borrow and ending on or prepay, as applicable, to but excluding the last day of in the applicable Eurodollar Period Period], divided by 360, times the applicable Interest Differential (or, if no deposit rate quotation is available for such period, for provided that the most comparable period for which product of the foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2) all out-of-pocket expenses incurred by such Lender the Bank reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s Bank's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender Bank to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. Any request for compensation by a Lender Bank under this Section shall set forth the basis upon which it has been determined that such an amount is due from BorrowerBorrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Bank.
(g) If any Bank claims compensation or is excused from making or continuing Eurodollar Rate Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Eurodollar Banking Days' prior notice to the Administrative Agent and such LenderBank and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected Eurodollar Rate Advances of such Bank or request that such Eurodollar Rate Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Bank, that Bank will be subject to removal in accordance with Section 11.27; provided that Borrower and the Co-Borrowers shall have paid such amount to that Bank and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Bank in writing of their intent to so remove the Bank.
Appears in 1 contract
Samples: 364 Day Loan Agreement (MGM Mirage)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes --------- imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross net income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent ----- such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any --------- reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided provided, that Borrower shall not be -------- obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(cb) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion -------- shall not be subject to payment of a prepayment fee under Section 3.8(d). ------ Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.8(b) on ----- ---- ------ a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)2.1 to make an Advance) to --- borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:: ---
(1) $250; plus ----
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that ---- amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such the Lender ------- could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plusplus ----
(23) all reasonable out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(fe) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) - of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such the Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) 15.1.1 In the event that any Governmental Agency Authority imposes on any Credit Facility Lender any reserve reserve, special deposit or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations liabilities (as defined in Regulation D or any comparable regulation of that any Governmental Authority having jurisdiction over any Credit Facility Lender, other than the Eurodollar Reserve Percentage) of any Credit Facility Lender, Borrower shall pay that Lender such lender within five (5) days Business Days after demand all amounts necessary to compensate such Credit Facility Lender (determined as though such Lenderlender’s Eurodollar Lending Office LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 forty five (45) days preceding the date of such demand or is attributable to periods prior to the date which is 180 forty five (45) days preceding the date of such demand). Any Such Credit Facility Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) 15.1.2 If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(ia) shall subject any Credit Facility Lender or its Eurodollar Lending Office LIBOR lending office to any tax, duty or other charge or cost with respect to any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate AdvancesLIBOR Loans, or shall change the basis of taxation of payments to any Credit Facility Lender attributable to the principal of or interest on any Eurodollar Rate Advance LIBOR Loan or any other amounts due under this Agreement in respect of any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate AdvancesLIBOR Loans, excluding (A) taxes Taxes imposed on or measured in whole or in part by its overall net income by (1a) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office LIBOR lending office or (2b) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws”;
(iib) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Credit Facility Lender or its Eurodollar Lending OfficeLIBOR lending office); or
(iiic) shall impose on any Credit Facility Lender or its Eurodollar Lending Office LIBOR lending office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advancessuch LIBOR Loan(s), its obligation to make Eurodollar Rate Advances LIBOR Loans or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such any Credit Facility Lender, increases the cost to such any Credit Facility Lender or its Eurodollar Lending Office LIBOR lending office of making or maintaining any Eurodollar Rate Advance LIBOR Loan or in respect of any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances LIBOR Loans or its obligation to make Eurodollar Rate Advances LIBOR Loans or reduces the amount of any sum received or receivable by such any Credit Facility Lender or its Eurodollar Lending Office LIBOR lending office with respect to any Eurodollar Rate AdvanceLIBOR Loan, any of its Notes Note evidencing Eurodollar Rate Advances such LIBOR Loan(s) or its obligation to make Eurodollar Rate Advances LIBOR Loans (assuming such Credit Facility Lender’s Eurodollar Lending Office LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market), then, within five (5) Banking Business Days after demand by such Lender lender (with a copy to the Administrative Agent), Borrower shall pay to such Credit Facility Lender such additional amount or amounts as will compensate such Lender lender for such increased cost or reduction (determined as though such Credit Facility Lender’s Eurodollar Lending Office LIBOR lending office had funded 100% of its Eurodollar Rate Advances LIBOR Loan in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Credit Facility Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) 15.1.3 If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Credit Facility Lender, make it unlawful or impossible for such Credit Facility Lender or its Eurodollar Lending Office LIBOR lending office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLIBOR Loan, or materially restrict the authority of such Credit Facility Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar RateLIBOR Basis, and Credit Facility Lender shall so notify Administrative Agent, then such Credit Facility Lender’s obligation to make Eurodollar Rate Advances LIBOR Loans shall be suspended for the duration of such illegality or impossibility and the Administrative Agent Credit Facility Lender forthwith shall give notice thereof to the other Credit Facility Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Credit Facility Lender’s affected Eurodollar Rate AdvancesLIBOR Loans, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances Loans on either (i1) the last day of the Eurodollar LIBOR Loan Period(s) applicable to such Eurodollar Rate Advances LIBOR Loans if such Lender lender may lawfully continue to maintain and fund such Eurodollar Rate Advances LIBOR Loans to such day(s) or (ii2) immediately if such Lender lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances LIBOR Loans to such day(s). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth provided that in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.such
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender after the Closing Date any reserve or comparable requirement (including any emergency, supplemental or other reservereserve but excluding any such amount included in the calculation of the Eurodollar Rate) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demanddemand and shall not be obligated to pay any such amount unless such Lender is generally making claims for compensation for such imposition against other similarly situated borrowers). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding (A) taxes imposed on Taxes or measured in whole or in part Other Taxes covered by its overall net income by (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” Section 3.11, and (B) the imposition of, or any withholding taxes change in the rate of, any Income Tax payable by a Lender or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Lawsits Eurodollar Lending Office;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)Board, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office, but excluding any such amount included in the calculation of the Eurodollar Rate); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount (i) which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demanddemand and shall not be obligated to pay any such amount unless such Lender is generally making claims for compensation for any of the items listed in clauses (i), (ii) or (iii) above against other similarly situated borrowers. Payments by Borrower under this subsection shall not include (A) Income Taxes attributable to Lenders, and (B) any withholding taxes or other taxes based on gross income imposed by the United States of America on any Lender for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 3.11(e), to the extent such forms are then required by applicable Laws. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s)) and any interest accrued up to the date of such conversion shall be paid on the next Quarterly Payment Date. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate Advance, such Lender shall fund such Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. Each Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the circumstances described in clause (d)(ii) above, and the Administrative Agent shall promptly notify Borrower when the circumstances described in clause (d)(i) above no longer apply and shall promptly notify Borrower when the Requisite Lenders have notified the Administrative Agent of the cessation of the circumstances described in clause (d)(ii) above. Upon such notice from the Administrative Agent, the restrictions set forth in this subsection 3.6(d) shall no longer apply.
(e) Upon payment or prepayment of any Eurodollar Rate Advance on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(23) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, Borrower and a reasonably detailed calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Samples: Credit Agreement (West Marine Inc)
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including INCLUDING any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided PROVIDED, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate AdvancesLoan, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance Loan or any other amounts due under this Agreement in respect of any Eurodollar Rate AdvanceLoan, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances, excluding EXCLUDING (Ai) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including INCLUDING any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes Note evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances Loan or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market), Loan then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent)Lender, Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market)reduction; provided PROVIDED, that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and Lender shall so notify Borrower, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent Lender forthwith shall give notice thereof to the other Lenders and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, Loans together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances Loans on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Euro dollar Rate Advances Loans if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances Loans to such day(s) or (ii2) immediately immediately, if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances Loans to such day(s), PROVIDED that in such event the Conversion shall not be subject to payment of a prepayment fee under Section 3.6(e). Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender to notify Borrower as set forth in the first sentence of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for to notify Borrower of any such notice Special Eurodollar Circumstance and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance Loan for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspensionLoan.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent Lender reasonably determines in good faith that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersLender, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined in good faith by the Administrative Agent Lender (Ai) does not represent the effective pricing to such Lenders Lender for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Lender of making the applicable Eurodollar Rate AdvancesLoans; then the Administrative Agent Lender forthwith shall give notice thereof to Borrower and the LendersBorrower, whereupon until the Administrative Agent Lender notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Lender to make any future Eurodollar Rate Advances Loans shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance Loan (OTHER THAN as the result of a Conversion required under Section 3.6(c)) on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance Loan had been funded in the Designated Eurodollar Market) equal to the sum SUM of:
(1) $250; PLUS
(2) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus PLUS the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds EXCEEDS (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plusPLUS
(23) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment payment or failure to borrowprepayment. Each Lender’s 's good faith determination of the amount of any prepayment fee payable under this Section after Lender has exercised reasonable efforts to mitigate the amount of such fee shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including INCLUDING any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower Borrowers shall pay that Lender within five (5) days Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided PROVIDED, that Borrower Borrowers shall not be obligated to pay any such amount which arose prior to the date which is 180 ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is 180 ninety (90) days preceding the date of such demand). Any The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate AdvancesAdvances (PROVIDED, excluding that Borrowers shall not be obligated to pay any such amount which arose prior to the date which is ninety (A90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand), EXCLUDING (i) taxes imposed on or measured in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” " and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower Borrowers with the appropriate form or forms required by Section 11.2114.21, to the extent such forms are then required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including INCLUDING any reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s 's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders and BorrowerBorrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected 's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), PROVIDED that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.7(E). Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Agent and Borrower Borrowers of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) Any Eurodollar Rate Loan, together with accrued interest thereon, that is converted to an Alternate Base Rate Loan pursuant to Sections 3.7(C) or 3.7(E), shall (A) bear interest at a rate per annum equal to the Alternate Base Rate and (B) convert back to a Eurodollar Rate Loan as soon as practicable following the cessation of the Special Eurodollar Circumstance or the circumstances described in clause (1) or (2) of Section 3.7(E), as applicable, which gave rise to the conversion. If the amounts charged to Borrowers pursuant to Sections 3.7(a) and 3.7(B) make it commercially unreasonable for Borrowers to maintain such Eurodollar Rate Loan, Borrowers shall be permitted to convert any Eurodollar Rate Loan to an Alternate Base Rate Loan at any time thereafter upon notice to the Administrative Agent (it being understood and agreed that Borrowers may so convert such portions of any Loan as may be necessary to avoid breakage costs under Section 3.7(F)). A Loan so converted shall bear interest as set forth above and shall be re-converted to a Eurodollar Rate Loan upon three (3) Eurodollar Banking Days' notice to the Administrative Agent following the cessation of the Special Eurodollar Circumstance or the circumstances described in Section 3.7(E) or the determination by the Lender that it no longer chooses to require Borrowers to pay such amounts.
(e) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (Ai) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower Borrowers and the Lenders, whereupon until the Administrative Agent notifies Borrower Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. Upon any such suspension, the Eurodollar Rate Loans shall be converted to Alternate Base Rate Loans in accordance with Section 3.7(D) as of the first day of the Interest Period during which such circumstances arise.
(ef) Upon payment or prepayment of any Eurodollar Rate Advance Loan (OTHER THAN as the result of a conversion required under Section 3.7(C)), on a day other than the last day in the applicable Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower Borrowers (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtained); plus
(2) all out-of-pocket expenses incurred by such Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (aSections 2.1(A) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.2.1
Appears in 1 contract
Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender Bank any reserve or comparable requirement (including any emergency, supplemental or --------- other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve PercentageBank, Borrower shall pay that Lender Bank within five (5) days Banking Days after demand all amounts necessary to compensate such Lender Bank (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand)requirements. Any Lender’s The Bank's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender Bank attributable to the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding (Ai) taxes imposed on or measured --------- in whole or in part by its overall net income by (1A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2B) any jurisdiction (or political subdivision thereof) in which it is “"doing business” ," and (Bii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.2112.21, to the extent ----- such forms are then required by available under applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any --------- reserve imposed by the Board of Governors of the Federal Reserve System (other than the Eurodollar Reserve Percentage)System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its Eurodollar Lending Office); or
(iii3) shall impose on any Lender Bank or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Managing Agent), Borrower shall pay to such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such increased cost or reduction (determined as though such Lender’s Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand. A statement of any Lender Bank claiming compensation under this subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful or impossible for such Lender Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank shall so notify the Managing Agent, then such Lender’s Bank's obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Managing Agent forthwith shall give notice thereof to the other Lenders Banks and Borrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Bank's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Lender Bank may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii2) immediately if such Lender Bank may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event -------- the conversion shall not be to payment of a prepayment fee under clause (e) of this Section. Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause such Lender that Bank to notify Borrower as set forth in the first sentence of Managing Agent under this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender Bank shall fund such Eurodollar Dollar Rate Advance amount as an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate Base Rate Advance. In the event that any Lender’s Any Bank whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section shall promptly notify the Administrative Managing Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i1) the Administrative Managing Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Bank in the Designated Eurodollar Market for the applicable Eurodollar Period; or
(ii2) the Requisite Lenders Banks advise the Administrative Managing Agent that the Eurodollar Rate as determined by the Administrative Managing Agent (Ai) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period, or (Bii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable Eurodollar Rate Advances; then the Administrative Managing Agent forthwith shall give notice thereof to Borrower and the LendersBanks, whereupon until the Administrative Managing Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Banks to make any future Eurodollar Rate Advances shall be suspendedsuspended unless (but only if clause (2) above is the basis for such ------ --- suspension) Borrower notifies -57- the Managing Agent in writing that it elects to pay the Enhanced Applicable Eurodollar Rate Margin with respect to all Eurodollar Rate Loans made during such period. The Enhanced Applicable Eurodollar Rate Margin shall be the sum of (i) the Applicable Eurodollar Rate Margin plus (ii) such interest rate margin as the Requisite Banks specify is necessary to adjust the Eurodollar Rate to a rate which represents the effective pricing to such Banks for deposits of Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Period and which adequately and fairly reflects the cost to such Banks of making the applicable Eurodollar Rate Advances.
(e1) Upon payment or prepayment the principal amount of any the Eurodollar Rate Advance on a day other than prepaid or not borrowed or prepaid, as the case may be, times [the number of ----- days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Eurodollar Period Period], divided by 360, times the applicable Interest ---------- ----- Differential (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon provided that the failure of Borrower (for a reason other than the breach by a Lender of its obligation pursuant to Section 2.1(a)) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay to the appropriate Lender within five (5) Banking Days after demand a prepayment fee or failure to borrow fee, as the case may be (determined as though 100% product of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional interest would have accrued on the amount prepaid or not borrowed at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds (ii) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for foregoing formula must -------- be a period beginning on the date of the prepayment or failure to borrow and ending on the last day of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which a deposit rate quotation may be obtainedpositive number); plusplus ----
(2) all out-of-pocket expenses incurred by such Lender the Bank reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s Bank's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender Bank to compensation pursuant to clause (a) or clause (b) - - of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. Any request for compensation by a Lender Bank under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Bank.
(g) If any Bank claims compensation or is excused from making or continuing Eurodollar Rate Loans under this Section:
(i) Borrower may at any time, upon at least four (4) Eurodollar Banking Days' prior notice to the Managing Agent and such LenderBank and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this - - Section, pay in full the affected Eurodollar Rate Advances of such Bank or request that such Eurodollar Rate Advances be converted to Alternate Base Rate Advances; and
(ii) In the case where Borrower becomes obligated to pay a material amount under this Section 3.8 to any Bank, --- that Bank will be subject to removal in accordance with Section 12.27; provided that Borrower shall have paid such amount ----- -------- to that Bank and that Borrower, within the thirty (30) day period following the date of such payment, shall have notified that Bank in writing of its intent to so remove the Bank.
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Eurodollar Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to the Eurodollar Obligations of that Lender, other than the Eurodollar Reserve Percentage, Borrower shall pay that Lender within five (5) days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demand). Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any Special Eurodollar CircumstanceCircumstance shall:
(i) shall subject any Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Rate Advance, any of its Committed Advance Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to of the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Rate Advance, any of its Committed Advance Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances, excluding excluding, with respect to each Creditor, and any Affiliate or Eurodollar Lending Office thereof, (A) taxes imposed on or measured in whole or in part by its overall net income by (1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (2) any jurisdiction (or political subdivision thereof) in which it is “doing business” capital and franchise taxes imposed on it, (B) any withholding taxes or other taxes based on gross net income imposed (other than withholding taxes and taxes based on net income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by the United States of America any Governmental Agency) or (C) any withholding taxes or other taxes based on net income for any period with respect to which it has failed to provide Borrower Borrowers with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System (other than System, but excluding the Eurodollar Reserve PercentagePercentage taken into account in calculating the Eurodollar Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its Eurodollar Lending Office); or
(iii) shall impose on any Lender or its Eurodollar Lending Office or the Designated Eurodollar Market any other condition materially affecting any Eurodollar Rate Advance, any of its Committed Advance Notes evidencing Eurodollar Rate AdvancesLoans, its obligation to make Eurodollar Rate Advances or this Agreement, or shall otherwise materially affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate Advance, any of its Committed Advance Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any of its Committed Advance Notes evidencing Eurodollar Rate Advances Loans or its obligation to make Eurodollar Rate Advances (assuming such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market), then, within five (5) Banking Days after demand by provided that such Lender makes demand upon Borrowers (with a copy to the Administrative Agent)) within 90 days following the date upon which it becomes aware of any such event or circumstance, Borrower Borrowers shall within five Business Days pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances Advance in the Designated Eurodollar Market); . Each of the Borrowers hereby jointly and severally (but as between Borrowers, ratably) indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within five Business Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions provided that Borrower shall not be obligated to pay for or contemplated herein, as a result of the existence or occurrence of any such amount which arose prior to the date which is 180 days preceding the date of such demand or is attributable to periods prior to the date which is 180 days preceding the date of such demandSpecial Eurodollar Circumstance. A statement of any Lender claiming compensation under this subsection clause and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Lender agrees to endeavor promptly to notify Borrowers of any event of which it has actual knowledge, occurring after the Signing Date, which will entitle such Lender to compensation pursuant to this Section 3.8 and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the judgment of such Lender, otherwise be materially disadvantageous to such Lender. If any Lender claims compensation under this Section 3.8, Borrowers may at any time, upon at least four Eurodollar Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section 3.8 through the date of such payment plus any prepayment fee required by Section 3.8(d), pay in full the affected Eurodollar Rate Advances of such Lender or request that such Eurodollar Rate Advances be converted to Base Rate Advances. To the extent that any Lender which receives any payment from Borrowers under this Section 3.8 later receives any funds which are identifiable as a reimbursement or rebate of such amount from any other Person, such Lender shall promptly refund such amount to Borrowers.
(cb) If, after the date hereof, If the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful unlawful, impossible or impossible impracticable for such Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Borrowing consisting of Eurodollar Rate AdvancesLoan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make Eurodollar Rate Advances shall be suspended for the duration of such illegality illegality, impossibility or impossibility impracticability and the Administrative Agent forthwith shall give notice thereof to the other Lenders and BorrowerBorrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (i) the last day of the Eurodollar Interest Period(s) applicable to such Eurodollar Rate Advances if such Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately if such Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.8(d). Each Lender agrees to endeavor promptly to notify Borrower Borrowers of any event of which it has actual knowledge, occurring after the Closing Signing Date, which will cause such that Lender to notify Borrower as set forth in the first sentence of Administrative Agent under this SectionSection 3.8(b), and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate AdvanceLoan, such Lender shall fund such Eurodollar Dollar Rate Advance amount as an Alternate a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as an Alternate a Base Rate Advance. In the event that any Lender’s Any Lender whose obligation to make Eurodollar Rate Advances has been suspended under this Section, such Lender Section 3.8(b) shall promptly notify the Administrative Agent and Borrower Borrowers of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed Borrowing comprised of Eurodollar Rate AdvancesLoan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Eurodollar Interest Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent Agent:
(A) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Eurodollar Market in the relevant amount for the applicable Eurodollar Interest Period, or ; or
(B) will not adequately and fairly reflect the cost to such Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower Borrowers and the Lenders, whereupon until the Administrative Agent notifies Borrower Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future Eurodollar Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to specify a Base Rate Loan.
(ed) Upon payment or prepayment of any Eurodollar Rate Advance Advance, (other than as the result of a conversion required under Section 3.1(d) or 3.8(b)), on a day other than the last day in the applicable Eurodollar Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of any Borrower (for a reason other than the breach by failure of a Lender of its obligation pursuant to Section 2.1(a)make an Advance) to borrow on the date or in the amount specified for a Borrowing comprised of Eurodollar Rate Advances Loan in any Request for BorrowingLoan, Borrower Borrowers shall pay to the appropriate Lender within five (5) Banking Business Days after demand a prepayment fee or failure to borrow fee, as the case may be be, (determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) principal amount of the additional interest would have accrued on the amount Eurodollar Rate Advance prepaid or not borrowed at borrowed, as the Eurodollar Rate plus case may be, times the Applicable Eurodollar Rate Margin if that amount had remained or been outstanding through the last day of the applicable Eurodollar Period exceeds quotient of:
(iiA) the interest that such Lender could recover by placing such amount on deposit in the Designated Eurodollar Market for a period beginning on number of days between the date of the prepayment or failure to borrow borrow, as applicable, and ending on the last day in the applicable Interest Period; divided by
(B) 360, times the applicable Interest Differential (provided that the product of the applicable Eurodollar Period (or, if no deposit rate quotation is available for such period, for the most comparable period for which foregoing formula must be a deposit rate quotation may be obtainedpositive number); plus
(2C) all out-of-pocket expenses incurred by such the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee payable under this Section 3.8(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by such Lender.
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