Eurodollar Fees and Costs. (a) If the occurrence of any Regulatory Development after the Closing Date: (i) shall subject any Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Advance or its obligation to make Eurodollar Advances, or shall change the basis of taxation of payments to any Bank of the principal of or interest on any Eurodollar Advance or any other amounts due under this Agreement in respect of any Eurodollar Advance or its obligation to make Eurodollar Advances (except for changes in any tax on the overall net income, gross income or gross receipts of such Bank or its Eurodollar Lending Office); (ii) shall impose, modify or deem applicable any reserve (including any reserve imposed by the Board of Governors of the Federal Reserve System), special deposit or similar requirements (excluding any such requirement included in any applicable Eurodollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended by, any Bank or its Eurodollar Lending Office; or (iii) shall impose on any Bank or its Eurodollar Lending Office or the London interbank eurodollar market any other condition affecting any Eurodollar Advance or its obligation to make Eurodollar Advances, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined by such Bank, increases the cost to such Bank or its Eurodollar Lending Office of making or maintaining any Eurodollar Advance or in respect of any Eurodollar Advance or its obligation to make Eurodollar Advances or reduces the amount of any sum received or receivable by such Bank or its Eurodollar Lending Office with respect to any Eurodollar Advance or its obligation to make Eurodollar Advances (assuming such Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Advance in the London interbank eurodollar market), then, within 15 days after demand by such Bank (with a copy to the Administrative Agent), Borrower shall pay to such Bank such additional amount or amounts as will compensate such Bank for such increased cost or reduction (determined as though such Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Advance in the London interbank eurodollar market); provided that Borrower shall not be liable to any Bank for any such increased cost or reduction pursuant to this Section in respect of any period which is more than 6 months prior to such Bank's demand for such compensation. A statement of any 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 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 disadvantageous to such Bank. If any Bank claims compensation under this Section, Borrower may at any time, upon at least 4 Business 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 3.6(d), pay in full the affected Eurodollar Advances of such Bank or request that such Eurodollar Advances be converted to Base Rate Advances. (b) If after the Closing Date the occurrence of any Regulatory Development shall, in the opinion of any Bank, make it unlawful or impossible for such Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Eurodollar Rate Loan, or to take deposits of, dollars in the London interbank 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 Bank's obligation to make Eurodollar Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Banks and Borrower. Before giving any notice to the Administrative Agent pursuant to this Section, such Bank shall designate a different Lending Office if such designation will avoid the need for giving such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. Upon receipt of such notice, the outstanding principal amount of such Bank's Eurodollar Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances with Interest Periods corresponding to the Eurodollar Rate Loans of which such Eurodollar Advances were a part on either (1) the last day of the Interest Period(s) applicable to such Eurodollar Advances if such Bank may lawfully continue to maintain and fund such Eurodollar Advances to such day(s) or (2) immediately if such Bank may not lawfully continue to fund and maintain such Eurodollar 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). In the event that any Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan, such Bank shall fund such amount as a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a Base Rate Advance. (c) If, with respect to any proposed Eurodollar Rate Loan: (i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the London interbank eurodollar market generally that are beyond the reasonable control of the Banks, deposits in dollars (in the applicable amounts) are not being offered to each of the Banks in the London interbank eurodollar market for the applicable Interest Period; or (ii) the Required Banks advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent will not adequately and fairly reflect the cost to such Banks of making the applicable Eurodollar Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Banks, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Banks to make any future Eurodollar Advances shall be suspended. If at the time of such notice there is then pending a Loan Notice that specifies a Eurodollar Rate Loan, such Loan Notice shall be deemed to specify a Base Rate Loan. (d) Upon payment or prepayment of any Eurodollar 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 Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower to borrow on the date or in the amount specified for a Eurodollar Rate Loan in any Loan Notice, Borrower shall pay to each Bank an amount equal to the sum of (i) $250; plus (ii) the amount, if any, by which (x) the additional interest that would have accrued (without any Applicable Eurodollar Rate Spread) on the principal amount prepaid on account of the Eurodollar Advance had it remained outstanding until the last day of the applicable Interest Period, exceeds (y) the interest that Bank could recover by placing funds in the amount of the prepayment on deposit in the London interbank eurodollar market selected by that Bank for a period beginning on the date of the prepayment and ending on the last day of the applicable Interest Period, or for a comparable period for which an appropriate rate quote may be obtained; plus (iii) an amount equal to all costs and expenses which that Bank incurred or reasonably expects to incur in liquidating and reinvesting the prepayment. Each Bank's determination of the amount of any prepayment fee or failure to borrow fee payable under this Section 3.6(d) shall be conclusive in the absence of manifest error. (e) Any statement or certificate given by a Bank under this Section 3.6 shall satisfy the requirements set forth in Section 3.6(c) with respect to requests for reimbursement under Section 3.6(a). (f) Should any Bank demand payment under the provisions of Section 3.6(a) or should any Bank's Eurodollar Advances be suspended under the provisions of Section 3.6(b), then without limiting its obligation to reimburse any Bank for compensation claimed by such Bank pursuant to this Section 3.6, Borrower may, within 60 days following such occurrence, treat that Bank as an "Affected Bank" under Section 3.5(d), and exercise the remedies set forth in such Section 3.5(d).
Appears in 1 contract
Samples: Revolving Loan Agreement (Kb Home)
Eurodollar Fees and Costs. (a) If If, after the date hereof, the existence or occurrence of any Regulatory Development after the Closing DateSpecial Eurodollar Circumstance:
(i1) shall subject any Bank Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Advance Rate Advance, or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Bank Lender 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 or its obligation to make Eurodollar Rate Advances (except EXCEPT for changes in any tax tax, duty or other charge on the overall net income, gross income or gross receipts of such Bank Lender or its Eurodollar Lending Office);
(ii2) shall impose, modify or deem applicable any reserve (including INCLUDING any reserve imposed by the Board of Governors of the Federal Reserve System), special deposit or similar requirements (excluding any such requirement included in any applicable Eurodollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended by, any Bank Lender or its Eurodollar Lending Office; or
(iii3) shall impose on any Bank Lender or its Eurodollar Lending Office or the London interbank eurodollar market Designated Eurodollar Market any other condition affecting any Eurodollar Advance or Rate Loan, its obligation to make Eurodollar AdvancesRate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as reasonably determined by such BankLender, increases the cost to such Bank Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Advance or Rate Advance, its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Bank Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance or its obligation to make Eurodollar Rate Advances (assuming such Bankthe Lender's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in the London interbank eurodollar marketDesignated Eurodollar Market), then, within 15 days five Business Days after demand by such Bank Lender (with a copy to the Administrative Agent), ) Borrower shall pay to such Bank Lender such additional amount or amounts as will compensate such Bank Lender for such increased cost or reduction (determined as though such BankLender's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in the London interbank eurodollar marketDesignated Eurodollar Market); provided that Borrower shall not be liable to any Bank for any such increased cost or reduction pursuant to this Section in respect of any period which is more than 6 months prior to such Bank's demand for such compensation. A statement of any Bank Lender claiming compensation under this subsection Section 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 Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge (and, in any event, within one year from the date on which it obtained such knowledge), occurring after the Closing Date, which will entitle such Bank 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 BankLender, otherwise be disadvantageous to such Bank. If any Bank claims compensation under this Section, Borrower may at any time, upon at least 4 Business 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 3.6(d), pay in full the affected Eurodollar Advances of such Bank or request that such Eurodollar Advances be converted to Base Rate AdvancesLender.
(b) If If, after the Closing Date date hereof, the existence or occurrence of any Regulatory Development Special Eurodollar Circumstance shall, in the reasonable opinion of any BankLender, make it unlawful unlawful, impossible or impossible impracticable for such Bank Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Eurodollar Rate Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, dollars Dollars in the London interbank eurodollar marketDesignated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank Lender shall so notify the Administrative AgentAgent and Borrower, then such BankLender'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 Banks Lenders and Borrower. Before giving any notice to the Administrative Agent pursuant to this Section, such Bank shall designate a different Lending Office if such designation will avoid the need for giving such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. Upon receipt of such notice, the outstanding principal amount of such BankLender's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances with Interest Eurodollar Periods corresponding to the Eurodollar Rate Loans of which such Eurodollar Rate Advances were a part on either (1) the last day of the Interest Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Bank Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (2) immediately if such Bank Lender may not lawfully continue to fund and maintain such Eurodollar Rate Advances to such day(s), provided PROVIDED that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.6(d). In the event that any Bank such Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan, such Bank Lender shall fund fired such amount as a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a Base Rate Advance.
(c) If, with respect to any proposed Eurodollar Rate Loan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the London interbank eurodollar market Designated Eurodollar Market generally that are beyond the reasonable control of the BanksLenders, deposits in dollars Dollars (in the applicable amounts) are not being offered to each of the Banks Lenders in the London interbank eurodollar market Designated Eurodollar Market for the applicable Interest Eurodollar Period; or
(ii2) the Required Banks Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (i) 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 (ii) will not adequately and fairly reflect the cost to such Banks Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the BanksLenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Banks 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 Notice that specifies a Eurodollar Rate Loan, such Request for Loan Notice shall be deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any Eurodollar Advance Rate Loan, (other than 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 Interest Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower to borrow on the date or in the amount specified for a Eurodollar Rate Loan in any Loan NoticeRequest for Loan, Borrower shall pay to indemnify the Lenders against and reimburse each Bank an amount equal Lender on demand for all costs, expenses, penalties, losses, legal fees and damages incurred or sustained, or that would be incurred or sustained, by the Lenders, INCLUDING loss of interest, as reasonably determined by the Lenders, to the sum of
(i) $250; plus
(ii) extent that the amountsame are a direct result of such payment, if any, by which (x) the additional interest that would have accrued (without any Applicable Eurodollar Rate Spread) on the principal amount prepaid on account of the Eurodollar Advance had it remained outstanding until the last day of the applicable Interest Period, exceeds (y) the interest that Bank could recover by placing funds in the amount of the prepayment on deposit in the London interbank eurodollar market selected by that Bank for a period beginning on the date of the prepayment and ending on the last day of the applicable Interest Period, or for a comparable period for which an appropriate rate quote may be obtained; plus
(iii) an amount equal failure to all costs and expenses which that Bank incurred or reasonably expects to incur in liquidating and reinvesting the prepaymentborrow. Each BankLender's determination of the amount of any prepayment fee or failure to borrow fee payable under this Section 3.6(d) shall be conclusive in the absence of manifest error.
(e) Any statement or certificate given . The loss of interest by a Bank under this Section 3.6 shall satisfy Lender will be calculated as (i) the requirements set forth principal amount of the subject Loan, TIMES (ii) a fraction the numerator of which is the number of days between the date of payment and the last day of the applicable Eurodollar Period, and the denominator of which is 360, TIMES (iii) the Eurodollar Rate for the subject Loan, MINUS the Eurodollar Rate that would be applicable to a Loan in Section 3.6(c) with respect the amount of the subject Loan to requests for reimbursement under Section 3.6(abe made on the date of prepayment or a period equal to the number of days remaining in the applicable Eurodollar Period (to the extent such difference is a positive number).
(f) Should any Bank demand payment under the provisions of Section 3.6(a) or should any Bank's Eurodollar Advances be suspended under the provisions of Section 3.6(b), then without limiting its obligation to reimburse any Bank for compensation claimed by such Bank pursuant to this Section 3.6, Borrower may, within 60 days following such occurrence, treat that Bank as an "Affected Bank" under Section 3.5(d), and exercise the remedies set forth in such Section 3.5(d).
Appears in 1 contract
Samples: Loan Agreement (Landec Corp \Ca\)
Eurodollar Fees and Costs. (a) If If, after the date hereof, the existence or occurrence of any Regulatory Development after the Closing DateSpecial Eurodollar Circumstance:
(i1) shall subject any Bank Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Advance Rate Advance, or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Bank Lender 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 or its obligation to make Eurodollar Rate Advances (except for changes in any tax tax, duty or other charge on the overall net income, gross income or gross receipts of such Bank Lender or its Eurodollar Lending Office);
(ii2) shall impose, modify or deem applicable any reserve (including any reserve imposed by the Board of Governors of the Federal Reserve System), special deposit or similar requirements (excluding any such requirement included in any applicable Eurodollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended by, any Bank Lender or its Eurodollar Lending Office; or
(iii3) shall impose on any Bank Lender or its Eurodollar Lending Office or the London interbank eurodollar market Designated Eurodollar Market any other condition affecting any Eurodollar Advance or 38- Loan, its obligation to make Eurodollar AdvancesRate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as reasonably determined by such BankLender, increases the cost to such Bank Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Advance or Rate Advance, its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Bank Lender or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance or its obligation to make Eurodollar Rate Advances (assuming such Bankthe Lender's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in the London interbank eurodollar marketDesignated Eurodollar Market), then, within 15 days after upon demand by such Bank Lender (with a copy to the Administrative Agent), the relevant Borrower shall pay to such Bank Lender such additional amount or amounts as will compensate such Bank Lender for such increased cost or reduction (determined as though such BankLender's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in the London interbank eurodollar marketDesignated Eurodollar Market); provided that Borrower shall not be liable to any Bank for any such increased cost or reduction pursuant to this Section in respect of any period which is more than 6 months prior to such Bank's demand for such compensation. A statement of any Bank Lender claiming compensation under this subsection Section 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 Lender agrees to endeavor endeavour promptly to notify the relevant Borrower of any event of which it has actual knowledge (and, in any event, within one year from the date on which it obtained such knowledge), occurring after the Closing Date, which will entitle such Bank 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 BankLender, otherwise be disadvantageous to such Bank. If any Bank claims compensation under this Section, Borrower may at any time, upon at least 4 Business 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 3.6(d), pay in full the affected Eurodollar Advances of such Bank or request that such Eurodollar Advances be converted to Base Rate AdvancesLender.
(b) If If, after the Closing Date date hereof, the existence or occurrence of any Regulatory Development Special Eurodollar Circumstance shall, in the reasonable opinion of any BankLender, make it unlawful unlawful, impossible or impossible impracticable for such Bank Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Eurodollar Rate Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, dollars Dollars in the London interbank eurodollar marketDesignated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank Lender shall so notify the Administrative AgentAgent and the Borrowers, then such BankLender'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 Banks Lenders and Borrower. Before giving any notice to the Administrative Agent pursuant to this Section, such Bank shall designate a different Lending Office if such designation will avoid the need for giving such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such BankBorrowers. Upon receipt of such notice, the outstanding principal amount of such BankLender's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances with Interest Eurodollar Periods corresponding to the Eurodollar Rate Loans of which such Eurodollar Rate Advances were a part on either (1) the last day of the Interest Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Bank Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (2) immediately if such Bank 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 39- fee under Section 3.6(d). In the event that any Bank such Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan, such Bank Lender shall fund such amount as a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a Base Rate Advance.
(c) If, with respect to any proposed Eurodollar Rate Loan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the London interbank eurodollar market Designated Eurodollar Market generally that are beyond the reasonable control of the BanksLenders, deposits in dollars Dollars (in the applicable amounts) are not being offered to each of the Banks Lenders in the London interbank eurodollar market Designated Eurodollar Market for the applicable Interest Eurodollar Period; or
(ii2) the Required Banks Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (i) 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 (ii) will not adequately and fairly reflect the cost to such Banks Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower the Borrowers and the BanksLenders, whereupon until the Administrative Agent notifies Borrower the Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Banks 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 Notice that specifies a Eurodollar Rate Loan, such Request for Loan Notice shall be deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any Eurodollar Advance Loan (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 Interest Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of a Borrower to borrow on the date or in the amount specified for a Eurodollar Rate Loan in any Loan NoticeRequest for Loan, the relevant Borrower shall pay to indemnify the Lenders against and reimburse each Bank an amount equal Lender on demand for all costs, expenses, penalties, losses, legal fees and damages incurred or sustained, or that would be incurred or sustained, by the Lenders, including loss of interest, as reasonably determined by the Lenders, to the sum of
(i) $250; plus
(ii) extent that the amountsame are a direct result of such payment, if any, by which (x) the additional interest that would have accrued (without any Applicable Eurodollar Rate Spread) on the principal amount prepaid on account of the Eurodollar Advance had it remained outstanding until the last day of the applicable Interest Period, exceeds (y) the interest that Bank could recover by placing funds in the amount of the prepayment on deposit in the London interbank eurodollar market selected by that Bank for a period beginning on the date of the prepayment and ending on the last day of the applicable Interest Period, or for a comparable period for which an appropriate rate quote may be obtained; plus
(iii) an amount equal failure to all costs and expenses which that Bank incurred or reasonably expects to incur in liquidating and reinvesting the prepaymentborrow. Each BankLender's determination of the amount of any prepayment fee or failure to borrow fee payable under this Section 3.6(d) shall be conclusive in the absence of manifest error.
(e) Any statement or certificate given by a Bank under this Section 3.6 . The Borrower shall satisfy the requirements set forth in Section 3.6(c) with respect to requests for reimbursement under Section 3.6(a).
(f) Should also pay any Bank demand payment under the provisions of Section 3.6(a) or should any Bank's Eurodollar Advances be suspended under the provisions of Section 3.6(b), then without limiting its obligation to reimburse any Bank for compensation claimed customary administrative fees charged by such Bank pursuant Lender in connection with the foregoing. For purposes of calculating amounts payable by Borrowers to the Lenders under this Section 3.6, Borrower mayeach Lender shall be deemed to have funded each Eurodollar Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the 40- Designated Eurodollar Market for a comparable amount and for a comparable period, within 60 days following whether or not such occurrence, treat that Bank as an "Affected Bank" under Section 3.5(d), and exercise the remedies set forth Eurodollar Rate Loan was in such Section 3.5(d)fact so funded.
Appears in 1 contract
Samples: Loan Agreement (Jakks Pacific Inc)
Eurodollar Fees and Costs. (a) If If, after the date hereof, the existence or occurrence of any Regulatory Development after the Closing DateSpecial Eurodollar Circumstance:
(i1) shall materially subject any Bank Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Advance Rate Advance, its Notes or its obligation to make Eurodollar Rate Advances, or shall materially change the basis of taxation of payments to any Bank Lender of the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Advance Rate Advance, its Notes or its obligation to make Eurodollar Rate Advances (except for changes in any tax on the overall net income, gross income or gross receipts of such Bank Lender or its Eurodollar Lending Office);
(ii2) shall impose, modify or deem applicable any reserve (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System), special deposit or similar requirements (excluding any such requirement included in any applicable Eurodollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended by, any Bank Lender or its Eurodollar Lending Office; or
(iii3) shall impose on any Bank Lender or its Eurodollar Lending Office or the London interbank eurodollar market Designated Eurodollar Market any other condition affecting any Eurodollar Advance or Rate Advance, its Notes, its obligation to make Eurodollar Advances, Rate Advances or this Agreement or shall otherwise affect any of the same; and the result of any of the foregoing, as determined by such BankLender, materially increases the cost to such Bank Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Advance Rate Advance, its Notes or its obligation to make Eurodollar Rate Advances or materially reduces the amount of any sum received or receivable by such Bank Lender or its Eurodollar Lending Office with respect to any Eurodollar Advance Rate Advance, its Notes or its obligation to make Eurodollar Rate Advances (assuming such BankLender's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in the London interbank eurodollar marketDesignated Eurodollar Market), then, within 15 days after upon demand by such Bank Lender (with a copy to the Administrative Agent), Borrower shall pay to such Bank Lender such additional amount or amounts as will reasonably compensate such Bank Lender for such increased cost or reduction (determined as though such BankLender's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in the London interbank eurodollar marketDesignated Eurodollar Market); provided that Borrower shall not be liable to any Bank for any such increased cost or reduction pursuant to this Section in respect of any period which is more than 6 months prior to such Bank's demand for such compensation. A statement of any Bank 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 Bank Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge 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 disadvantageous to such Bank. If any Bank claims compensation under this Section, Borrower may at any time, upon at least 4 Business 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 3.6(d), pay in full the affected Eurodollar Advances of such Bank or request that such Eurodollar Advances be converted to Base Rate Advances.
(b) If after the Closing Date the occurrence of any Regulatory Development shall, in the opinion of any Bank, make it unlawful or impossible for such Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Eurodollar Rate Loan, or to take deposits of, dollars in the London interbank 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 Bank's obligation to make Eurodollar Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Banks and Borrower. Before giving any notice to the Administrative Agent pursuant to this Section, such Bank shall designate a different Lending Office if such designation will avoid the need for giving such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. Upon receipt of such notice, the outstanding principal amount of such Bank's Eurodollar Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances with Interest Periods corresponding to the Eurodollar Rate Loans of which such Eurodollar Advances were a part on either (1) the last day of the Interest Period(s) applicable to such Eurodollar Advances if such Bank may lawfully continue to maintain and fund such Eurodollar Advances to such day(s) or (2) immediately if such Bank may not lawfully continue to fund and maintain such Eurodollar 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). In the event that any Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan, such Bank shall fund such amount as a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a Base Rate Advance.
(c) If, with respect to any proposed Eurodollar Rate Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the London interbank eurodollar market generally that are beyond the reasonable control of the Banks, deposits in dollars (in the applicable amounts) are not being offered to each of the Banks in the London interbank eurodollar market for the applicable Interest Period; or
(ii) the Required Banks advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent will not adequately and fairly reflect the cost to such Banks of making the applicable Eurodollar Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Banks, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Banks to make any future Eurodollar Advances shall be suspended. If at the time of such notice there is then pending a Loan Notice that specifies a Eurodollar Rate Loan, such Loan Notice shall be deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any Eurodollar 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 Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower to borrow on the date or in the amount specified for a Eurodollar Rate Loan in any Loan Notice, Borrower shall pay to each Bank an amount equal to the sum of
(i) $250; plus
(ii) the amount, if any, by which (x) the additional interest that would have accrued (without any Applicable Eurodollar Rate Spread) on the principal amount prepaid on account of the Eurodollar Advance had it remained outstanding until the last day of the applicable Interest Period, exceeds (y) the interest that Bank could recover by placing funds in the amount of the prepayment on deposit in the London interbank eurodollar market selected by that Bank for a period beginning on the date of the prepayment and ending on the last day of the applicable Interest Period, or for a comparable period for which an appropriate rate quote may be obtained; plus
(iii) an amount equal to all costs and expenses which that Bank incurred or reasonably expects to incur in liquidating and reinvesting the prepayment. Each Bank's determination of the amount of any prepayment fee or failure to borrow fee payable under this Section 3.6(d) shall be conclusive in the absence of manifest error.
(e) Any statement or certificate given by a Bank under this Section 3.6 shall satisfy the requirements set forth in Section 3.6(c) with respect to requests for reimbursement under Section 3.6(a).
(f) Should any Bank demand payment under the provisions of Section 3.6(a) or should any Bank's Eurodollar Advances be suspended under the provisions of Section 3.6(b), then without limiting its obligation to reimburse any Bank for compensation claimed by such Bank pursuant to this Section 3.6, Borrower may, within 60 days following such occurrence, treat that Bank as an "Affected Bank" under Section 3.5(d), and exercise the remedies set forth in such Section 3.5(d).to
Appears in 1 contract
Eurodollar Fees and Costs. (a) If If, after the date hereof, the existence or occurrence of any Regulatory Development after the Closing DateSpecial Eurodollar Circumstance:
(i1) shall subject any Bank Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Advance Rate Loan, or its obligation to make Eurodollar AdvancesRate Loans, or shall change the basis of taxation of payments to any Bank Lender of the principal of or interest on any Eurodollar Advance Rate Loan or any other amounts due under this Agreement in respect of any Eurodollar Advance Rate Loan or its obligation to make Eurodollar Advances Rate Loans (except for changes in any tax tax, duty or other ------ charge on the overall net income, gross income or gross receipts of such Bank Lender or its Eurodollar Lending Office);
(ii2) shall impose, modify or deem applicable any reserve (including any reserve imposed by the Board of Governors of the --------- Federal Reserve System), special deposit or similar requirements (excluding any such requirement included in any applicable Eurodollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended by, any Bank Lender or its Eurodollar Lending Office; or
(iii3) shall impose on any Bank Lender or its Eurodollar Lending Office or the London interbank eurodollar market Designated Eurodollar Market any other condition affecting any Eurodollar Advance or Rate Loan, its obligation to make Eurodollar AdvancesRate Loans or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as reasonably determined by such BankLender, increases the cost to such Bank Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Advance Rate Loan or in respect of any Eurodollar Advance or Rate Loan, its obligation to make Eurodollar Advances Rate Loans or reduces the amount of any sum received or receivable by such Bank Lender or its Eurodollar Lending Office with respect to any Eurodollar Advance Rate Loan or its obligation to make Eurodollar Advances Rate Loans (assuming such Bankthe Lender's Eurodollar Lending Office had funded 100% of its Eurodollar Advance Rate Loan in the London interbank eurodollar marketDesignated Eurodollar Market), then, within 15 days after upon demand by such Bank Lender (with a copy to the Administrative Agent), Borrower shall pay to such Bank Lender such additional amount or amounts as will compensate such Bank Lender for such increased cost or reduction (determined as though such BankLender's Eurodollar Lending Office had funded 100% of its Eurodollar Advance Rate Loan in the London interbank eurodollar marketDesignated Eurodollar Market); provided that Borrower shall not be liable to any Bank for any such increased cost or reduction pursuant to this Section in respect of any period which is more than 6 months prior to such Bank's demand for such compensation. A statement of any Bank Lender claiming compensation under this subsection Section 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 Lender agrees to endeavor endeavour promptly to notify Borrower of any event of which it has actual knowledge (and, in any event, within one year from the date on which it obtained such know ledge), occurring after the Closing Date, which will entitle such Bank 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 BankLender, otherwise be disadvantageous to such Bank. If any Bank claims compensation under this Section, Borrower may at any time, upon at least 4 Business 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 3.6(d), pay in full the affected Eurodollar Advances of such Bank or request that such Eurodollar Advances be converted to Base Rate AdvancesLender.
(b) If If, after the Closing Date date hereof, the existence or occurrence of any Regulatory Development Special Eurodollar Circumstance shall, in the reasonable opinion of any BankLender, make it unlawful unlawful, impossible or impossible impracticable for such Bank Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Eurodollar Rate Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, dollars Dollars in the London interbank eurodollar marketDesignated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank Lender shall so notify the Administrative AgentAgent and the Borrower, then such BankXxxxxx's obligation to make Eurodollar Advances Rate Loans 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 Banks Lenders and Borrower. Before giving any notice to the Administrative Agent pursuant to this Section, such Bank shall designate a different Lending Office if such designation will avoid the need for giving such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. Upon receipt of such notice, the outstanding principal amount of such BankXxxxxx's Eurodollar AdvancesRate Loans, together with accrued interest thereon, automatically shall be converted to Base Rate Advances Loans with Interest Eurodollar Periods corresponding to the Eurodollar Rate Loans of which such Eurodollar Advances Rate Loans were a part on either (1) the last day of the Interest Eurodollar Period(s) applicable to such Eurodollar Advances Rate Loans if such Bank Lender may lawfully continue to maintain and fund such Eurodollar Advances Rate Loans to such day(s) or (2) immediately if such Bank Lender may not lawfully continue to fund and maintain such Eurodollar Advances Rate 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(d). In the event that any Bank such Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan, such Bank Lender shall fund such amount as a Base Rate Advance Loan for the same period of time, and such amount shall be treated in all respects as a Base Rate AdvanceLoan.
(c) If, with respect to any proposed Eurodollar Rate Loan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the London interbank eurodollar market Designated Eurodollar Market generally that are beyond the reasonable control of the BanksLenders, deposits in dollars Dollars (in the applicable amounts) are not being offered to each of the Banks Lenders in the London interbank eurodollar market Designated Eurodollar Market for the applicable Interest Eurodollar Period; or
(ii2) the Required Banks Requisite Lenders advise the Administrative Agent that the Eurodollar Rate rate as previously determined by the Administrative Agent (i) 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 (ii) will not adequately and fairly reflect the cost to such Banks Lenders of making the applicable Eurodollar AdvancesRate Loans; then the Administrative Agent forthwith shall give notice thereof to Borrower and the BanksLenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Banks Lenders to make any future Eurodollar Advances Rate Loans shall be suspended. If at the time of such notice there is then pending a Request for Loan Notice that specifies a Eurodollar Rate Loan, such Request for Loan Notice shall be deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any Eurodollar Advance Rate Loan, (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 Interest Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower to borrow on the date or in the amount specified for a Eurodollar Rate Loan in any Loan NoticeRequest for Loan, Borrower shall pay to indemnify the Lenders against and reimburse each Bank an amount equal Lender on demand for all costs, expenses, penalties, losses, legal fees and damages incurred or sustained, or that would be incurred or sustained, by the Lenders, including loss of interest, as reasonably determined by the --------- Lenders, to the sum of
(i) $250; plus
(ii) extent that the amountsame are a direct result of such payment, if any, by which (x) the additional interest that would have accrued (without any Applicable Eurodollar Rate Spread) on the principal amount prepaid on account of the Eurodollar Advance had it remained outstanding until the last day of the applicable Interest Period, exceeds (y) the interest that Bank could recover by placing funds in the amount of the prepayment on deposit in the London interbank eurodollar market selected by that Bank for a period beginning on the date of the prepayment and ending on the last day of the applicable Interest Period, or for a comparable period for which an appropriate rate quote may be obtained; plus
(iii) an amount equal failure to all costs and expenses which that Bank incurred or reasonably expects to incur in liquidating and reinvesting the prepaymentborrow. Each BankLender's determination of the amount of any prepayment fee or failure to borrow fee payable under this Section 3.6(d) shall be conclusive in the absence of manifest error.
. The loss of interest by Xxxxxx will be calculated as (ei) Any statement the principal amount of the subject Loan, times (ii) a fraction the ----- numerator of which is the number of days between the date of payment and the last day of the applicable Eurodollar Period, and the denominator of which is 360, times (iii) the Eurodollar Rate for the subject Loan, minus ----- ----- the Eurodollar Rate that would be applicable to a Loan in the amount of the subject Loan to be made on the date of prepayment or certificate given by a Bank under this Section 3.6 shall satisfy period equal to the requirements set forth number of days remaining in Section 3.6(c) with respect the applicable Eurodollar Period (to requests for reimbursement under Section 3.6(athe extent such difference is a positive number).
(f) Should any Bank demand payment under the provisions of Section 3.6(a) or should any Bank's Eurodollar Advances be suspended under the provisions of Section 3.6(b), then without limiting its obligation to reimburse any Bank for compensation claimed by such Bank pursuant to this Section 3.6, Borrower may, within 60 days following such occurrence, treat that Bank as an "Affected Bank" under Section 3.5(d), and exercise the remedies set forth in such Section 3.5(d).
Appears in 1 contract
Eurodollar Fees and Costs. (a) If If, after the date hereof, the existence or occurrence of any Regulatory Development after the Closing DateSpecial Eurodollar Circumstance:
(i) shall subject any Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Advance Rate Advance, its Note or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any 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 Advance Rate Advance, its Note or its obligation to make Eurodollar Rate Advances (except for changes in any tax on the overall net income, gross income or gross receipts of such Bank or its Eurodollar Lending Office);
(ii) shall impose, modify or deem applicable any reserve (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System), special deposit or similar requirements (excluding any such requirement included in any applicable Eurodollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended by, any Bank or its Eurodollar Lending Office; or
(iii) shall impose on any Bank or its Eurodollar Lending Office or the London interbank eurodollar market Designated Eurodollar Market any other condition affecting any Eurodollar Advance or Rate Advance, its Note, its obligation to make Eurodollar AdvancesRate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined by such Bank, increases the cost to such Bank or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Advance Rate Advance, its Note or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Bank or its Eurodollar Lending Office with respect to any Eurodollar Advance Rate Advance, its Note or its obligation to make Eurodollar Rate Advances (assuming such Bank's ’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in the London interbank eurodollar marketDesignated Eurodollar Market), then, within 15 days after upon demand by such Bank (with a copy to the Administrative Agent), Borrower shall pay to such Bank such additional amount or amounts as will compensate such Bank for such increased cost or reduction (determined as though such Bank's ’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in the London interbank eurodollar marketDesignated Eurodollar Market); provided that Borrower shall not be liable to any Bank for any such increased cost or reduction pursuant to this Section in respect of any period which is more than 6 months prior to such Bank's demand for such compensation. A statement of any 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 Restatement Date, which will entitle such Bank to compensation pursuant to this Section, and agrees to designate a different Eurodollar Lending Office promptly 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 disadvantageous to such Bank. If any Bank claims compensation under this Section, Borrower may at any time, upon at least 4 Business 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 3.6(d3.7(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.
(b) If If, after the Closing Date date hereof, the existence or occurrence of any Regulatory Development Special Eurodollar Circumstance shall, in the opinion of any Bank, make it unlawful unlawful, impossible or impossible impracticable for such Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Eurodollar Rate Loan, or materially restrict the authority of such Bank to purchase or sell, or to take deposits of, dollars in the London interbank eurodollar marketDesignated 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 Bank'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 Banks and Borrower. Before giving any notice to the Administrative Agent pursuant to this Section, such Bank shall designate a different Lending Office if such designation will avoid the need for giving such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. Upon receipt of such notice, the outstanding principal amount of such Bank's ’s Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances with Interest Periods corresponding to the Eurodollar Rate Loans of which such Eurodollar Advances were a part on either (1) the last day of the Interest Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Bank may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (2) immediately if such 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(d3.7(d). In the event that any Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan, such Bank shall fund such amount as a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a Base Rate Advance.
(c) If, with respect to any proposed Eurodollar Rate Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the London interbank eurodollar market Designated Eurodollar Market generally that are beyond the reasonable control of the Banks, deposits in dollars (in the applicable amounts) are not being offered to each of the Banks in the London interbank eurodollar market Designated Eurodollar Market for the applicable Interest Eurodollar Period; or
(ii) the Required Majority Banks advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Banks 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 Banks of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Banks, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the 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 Notice that specifies a Eurodollar Rate Loan, such Request for Loan Notice shall be deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any Eurodollar Advance Rate Advance, (other than as the result of a conversion required under Section 3.6(b3.7(b)) ), on a day other than the last day in the applicable Interest Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower to borrow on the date or in the amount specified for a Eurodollar Rate Loan in any Loan NoticeRequest for Loan, Borrower shall pay to each the appropriate Bank an amount equal a prepayment fee or failure to borrow fee, as the sum ofcase may be, calculated as follows (and determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market):
(i) $250principal amount of the Eurodollar Rate Advance, times [number of days between the date of prepayment and the last day in the applicable Eurodollar Period], divided by 360, times the applicable Interest Differential; plus
(ii) all actual out-of-pocket expenses (other than those taken into account in the amount, if any, by which (x) the additional interest that would have accrued (without any Applicable Eurodollar Rate Spread) on the principal amount prepaid on account calculation of the Eurodollar Advance had it remained outstanding until Interest Differential) incurred by the last day Bank (excluding allocations of any expense internal to that Bank) and reasonably attributable to such payment or prepayment; provided that no prepayment fee or failure to borrow fee shall be payable (and no credit or rebate shall be required) if the product of the applicable Interest Period, exceeds (y) the interest that Bank could recover by placing funds in the amount of the prepayment on deposit in the London interbank eurodollar market selected by that Bank for foregoing formula is not a period beginning on the date of the prepayment and ending on the last day of the applicable Interest Period, or for a comparable period for which an appropriate rate quote may be obtained; plus
(iii) an amount equal to all costs and expenses which that Bank incurred or reasonably expects to incur in liquidating and reinvesting the prepaymentpositive number. Each Bank's ’s determination of the amount of any prepayment fee or failure to borrow fee payable under this Section 3.6(d3.7(d) shall be based upon the Administrative Agent’s determination of the applicable Interest Differential but shall otherwise be conclusive in the absence of manifest error.
(e) Any statement or certificate given by a Bank under this Section 3.6 shall satisfy the requirements set forth in Section 3.6(c) with respect to requests for reimbursement under Section 3.6(a).
(f) Should any Bank demand payment under the provisions of Section 3.6(a) or should any Bank's Eurodollar Advances be suspended under the provisions of Section 3.6(b), then without limiting its obligation to reimburse any Bank for compensation claimed by such Bank pursuant to this Section 3.6, Borrower may, within 60 days following such occurrence, treat that Bank as an "Affected Bank" under Section 3.5(d), and exercise the remedies set forth in such Section 3.5(d).
Appears in 1 contract
Samples: Loan Agreement (NGA Holdco, LLC)
Eurodollar Fees and Costs. (a) If If, after the date hereof, the existence or occurrence of any Regulatory Development after the Closing DateSpecial Eurodollar Circumstance:
(i1) shall subject any Bank Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Advance Advance, or its obligation to make Eurodollar Advances, or shall change the basis of taxation of payments to any Bank Lender of the principal of or interest on any Eurodollar Advance or any other amounts due under this Agreement in respect of any Eurodollar Advance or its obligation to make Eurodollar Advances (except for changes in any tax tax, duty or other charge on the overall net income, gross income or gross receipts of such Bank Lender or its Eurodollar Lending Office);
(ii2) shall impose, modify or deem applicable any reserve (including any reserve imposed by the Board of Governors of the Federal Reserve System), special deposit or similar requirements (excluding any such requirement included in any applicable Eurodollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended by, any Bank Lender or its Eurodollar Lending Office; or
(iii3) shall impose on any Bank Lender or its Eurodollar Lending Office or the London interbank eurodollar market Market any other condition affecting any Eurodollar Advance or Loan, its obligation to make Eurodollar AdvancesAdvances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as reasonably determined by such BankLender, increases the cost to such Bank Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Advance or in respect of any Eurodollar Advance or Advance, its obligation to make Eurodollar Advances or reduces the amount of any sum received or receivable by such Bank Lender or its Eurodollar Lending Office with respect to any Eurodollar Advance or its obligation to make Eurodollar Advances (assuming such Bankthe Lender's Eurodollar Lending Office had funded 100% of its Eurodollar Advance in the London interbank eurodollar marketMarket), then, within 15 days after upon demand by such Bank Lender and receipt by Borrower of the statement referred to below (with a copy to the Administrative Agent), ) Borrower shall pay to such Bank Lender such additional amount or amounts as will compensate such Bank Lender for such increased cost or reduction (determined as though such BankLender's Eurodollar Lending Office had funded 100% of its Eurodollar Advance in the London interbank eurodollar marketMarket); provided that Borrower shall not be liable to any Bank for any such increased cost or reduction pursuant to this Section in respect of any period which is more than 6 months prior to such Bank's demand for such compensation. A statement of any Bank Lender claiming compensation under this subsection Section and setting forth in reasonable detail the basis for calculating the additional amount or amounts to be paid to it hereunder delivered to Borrower shall be conclusive in the absence of manifest error. Each Bank Lender agrees to endeavor endeavour promptly to notify Borrower of any event of which it has actual knowledge (and in any event, within one year from the date on which it obtained such knowledge), occurring after the Closing Date, which will entitle such Bank 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 BankLender, otherwise be disadvantageous to such Bank. If any Bank claims compensation under this Section, Borrower may at any time, upon at least 4 Business 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 3.6(d), pay in full the affected Eurodollar Advances of such Bank or request that such Eurodollar Advances be converted to Base Rate AdvancesLender.
(b) If If, after the Closing Date date hereof, the existence or occurrence of any Regulatory Development Special Eurodollar Circumstance shall, in the reasonable opinion of any BankLender, make it unlawful unlawful, impossible or impossible impracticable for such Bank Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Eurodollar Rate Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, dollars in the London interbank eurodollar marketMarket, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank Lender shall so notify the Administrative AgentAgent and Borrower, then such BankLender's obligation to make Eurodollar 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 Banks Lenders and Borrower. Before giving any notice to the Administrative Agent pursuant to this Section, such Bank shall designate a different Lending Office if such designation will avoid the need for giving such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. Upon receipt of such notice, the outstanding principal amount of such BankLender's Eurodollar Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances with Interest Eurodollar Periods corresponding to the Eurodollar Rate Loans of which such Eurodollar Advances were a part on either (1) the last day of the Interest Eurodollar Period(s) applicable to such Eurodollar Advances if such Bank Lender may lawfully continue to maintain and fund such Eurodollar Advances to such day(s) or (2) immediately if such Bank Lender may not lawfully continue to fund and maintain such Eurodollar 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(d3.4(d). In the event that any Bank such Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan, such Bank Lender shall fund such amount as a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a Base Rate Advance.
(c) If, with respect to any proposed Eurodollar Rate Loan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the London interbank eurodollar market Market generally that are beyond the reasonable control of the BanksLenders, deposits in dollars (in the applicable amounts) are not being offered to each of the Banks Lenders in the London interbank eurodollar market Market for the applicable Interest Eurodollar Period; or
(ii2) the Required Banks Requisite Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in dollars in the Market in the relevant amount for the applicable Eurodollar Period, or (ii) will not adequately and fairly reflect the cost to such Banks Lenders of making the applicable Eurodollar Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the BanksLenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Banks Lenders to make any future Eurodollar Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan Notice that specifies a Eurodollar Rate Loan, such Request for Loan Notice shall be deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any Eurodollar Advance Loan, (other than as the result of a conversion required under Section 3.6(b3.4(b)) ), on a day other than the last day in the applicable Interest Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower to borrow on the date or in the amount specified for a Eurodollar Rate Loan in any Loan NoticeRequest for Loan, Borrower shall pay to indemnify the Lenders against and reimburse each Bank an amount equal Lender on demand for all costs, expenses, penalties, losses, reasonable legal fees and damages incurred or sustained, or that would be incurred or sustained, by the Lenders, including loss of interest, as reasonably determined by the Lenders, to the sum of
(i) $250; plus
(ii) extent that the amountsame are a direct result of such payment, if any, by which (x) the additional interest that would have accrued (without any Applicable Eurodollar Rate Spread) on the principal amount prepaid on account of the Eurodollar Advance had it remained outstanding until the last day of the applicable Interest Period, exceeds (y) the interest that Bank could recover by placing funds in the amount of the prepayment on deposit in the London interbank eurodollar market selected by that Bank for a period beginning on the date of the prepayment and ending on the last day of the applicable Interest Period, or for a comparable period for which an appropriate rate quote may be obtained; plus
(iii) an amount equal failure to all costs and expenses which that Bank incurred or reasonably expects to incur in liquidating and reinvesting the prepaymentborrow. Each BankLender's determination of the amount of any prepayment fee or failure to borrow fee payable under this Section 3.6(d3.4(d) shall be conclusive in the absence of manifest error. The loss of interest by a Lender will be calculated as (i) the principal amount of the subject Loan, times (ii) a fraction the numerator of which is the number of days between the date of payment and the last day of the applicable Eurodollar Period, and the denominator of which is 360, times (iii) the Eurodollar Rate for the subject Loan, minus the Eurodollar Rate that would be applicable to a Loan in the amount of the subject Loan to be made on the date of prepayment or a period equal to the number of days remaining in the applicable Eurodollar Period (to the extent such difference is a positive number).
(e) Any statement Each Lender agrees that, as promptly as practicable after the officer of such Lender responsible for administering the Loans of such Lender becomes aware of the occurrence of an event or certificate given by the existence of a Bank condition that would entitle such Lender to receive payments under this Section 3.6 shall satisfy Sections 3.3. or 3.4, it will, to the requirements set forth in Section 3.6(cextent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts (i) with respect to requests for reimbursement under Section 3.6(a).
make, issue, fund or maintain the Commitments of such Lender, or the affected Loans of such Lender through another lending office of such Lender, or (fii) Should any Bank demand payment under take such other measures as such Lender may deem reasonable, if as a result thereof the provisions of Section 3.6(a) additional amounts which would otherwise be required to be paid to such Lender pursuant to Sections 3.3 or should any Bank's Eurodollar Advances 3.4 would be suspended under the provisions of Section 3.6(b)materially reduced and if, then without limiting its obligation to reimburse any Bank for compensation claimed as determined by such Bank pursuant to this Section 3.6Lender in its sole discretion, Borrower maythe making, within 60 days following issuing, funding or maintain of such occurrenceCommitments or Loans through such other lending office or in accordance with such other measures, treat that Bank as an "Affected Bank" under Section 3.5(d)the case may be, and exercise would not otherwise materially adversely affect such Commitments or Loans or the remedies set forth in interests of such Section 3.5(d)Lender.
Appears in 1 contract
Eurodollar Fees and Costs. (a) If If, after the date hereof, the existence or occurrence of any Regulatory Development after the Closing DateSpecial Eurodollar Circumstance:
(i1) shall subject any Bank Lender or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Advance Rate Advance, its Notes or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any Bank Lender of the principal of or interest on any Eurodollar Rate Advance or any other amounts due under this Agreement in respect of any Eurodollar Advance Rate Advance, its Notes or its obligation to make Eurodollar Rate Advances (except for changes in ------ any tax on the overall net income, gross income or gross receipts of such Bank Lender or its Eurodollar Lending Office);
(ii2) shall impose, modify or deem applicable any reserve (including including, without limitation, any reserve imposed by the Board of --------- Governors of the Federal Reserve System), special deposit or similar requirements (excluding any such requirement included in any applicable Eurodollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended by, any Bank Lender or its Eurodollar Lending Office; or
(iii3) shall impose on any Bank Lender or its Eurodollar Lending Office or the London interbank eurodollar market Designated Eurodollar Market any other condition affecting any Eurodollar Advance or Rate Advance, its Notes, its obligation to make Eurodollar AdvancesRate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined by such BankLender, increases the cost to such Bank Lender or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Advance Rate Advance, its Notes or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Bank Lender or its Eurodollar Lending Office with respect to any Eurodollar Advance Rate Advance, its Notes or its obligation to make Eurodollar Rate Advances (assuming such BankLender's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in the London interbank eurodollar marketDesignated Eurodollar Market), then, within 15 days after upon demand by such Bank Lender (with a copy to the Administrative Agent), Borrower shall pay to such Bank Lender such additional amount or amounts as will compensate such Bank Lender for such increased cost or reduction (determined as though such BankLender's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in the London interbank eurodollar marketDesignated Eurodollar Market); provided that Borrower shall not be liable to any Bank for any such increased cost or reduction pursuant to this Section in respect of any period which is more than 6 months prior to such Bank's demand for such compensation. A statement of any Bank 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 Bank Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge knowledge, occurring after the Closing Date, which will entitle such Bank 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 BankLender, otherwise be disadvantageous to such BankLender. If any Bank Lender claims compensation under this Section, Borrower may at any time, upon at least 4 Business four (4) Eurodollar Banking Days' prior notice to the Administrative Agent and such Bank Lenders 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(d3.7(d), pay in full the affected all Eurodollar Rate Advances of such Bank or request ----- that such all Eurodollar Rate Advances be converted to Base Rate Advances.
(b) If If, after the Closing Date date hereof, the existence or occurrence of any Regulatory Development Special Eurodollar Circumstance shall, in the opinion of any BankLender, make it unlawful unlawful, impossible or impossible impracticable for such Bank Lender or its Eurodollar Lending Office to make, maintain or fund its portion of any Eurodollar Rate Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, dollars in the London interbank eurodollar marketDesignated Eurodollar Market, or to determine or charge interest rates based upon the Eurodollar Rate, and such Bank Lender shall so notify the Administrative AgentAgent and the other Lenders, then such Bank's the Lenders' 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 Banks and Borrower. Before giving any notice to the Administrative Agent pursuant to this Section, such Bank shall designate a different Lending Office if such designation will avoid the need for giving such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. Upon receipt of such notice, the outstanding principal amount of such Bank's all Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances with Interest Eurodollar Periods corresponding to the Eurodollar Rate Loans of which such Eurodollar Rate Advances were a part on either (1) the last day of the Interest Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Bank the affected Lender may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (2) immediately if such Bank the affected 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(d3.7(d). In the event that any Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan, such Bank shall fund such amount as a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a Base Rate Advance.------
(c) If, with respect to any proposed Eurodollar Rate Loan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the London interbank eurodollar market Designated Eurodollar Market generally that are beyond the reasonable control of the BanksLenders, deposits in dollars (in the applicable amounts) are not being offered to each of the Banks Lenders in the London interbank eurodollar market Designated Eurodollar Market for the applicable Interest Eurodollar Period; or
(ii2) the Required Banks Majority Lenders advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (i) 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 (ii) will not adequately and fairly reflect the cost to such Banks Lenders of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the BanksLenders, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Banks 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 Notice that specifies a Eurodollar Rate Loan, such Request for Loan Notice shall be deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any Eurodollar Advance Rate Advance, (other than as the result of a conversion required under Section 3.6(b3.7(b)) ), on a day other ------- than the last day in the applicable Interest Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower to borrow on the date or in the amount specified for a Eurodollar Rate Loan in any Loan NoticeRequest for Loan, Borrower shall pay to each Bank an amount equal to the sum of
(i) $250; plus
(ii) the amount, if any, by which (x) the additional interest that would have accrued (without any Applicable Eurodollar Rate Spread) on the principal amount prepaid on account of the Eurodollar Advance had it remained outstanding until the last day of the applicable Interest Period, exceeds (y) the interest that Bank could recover by placing funds in the amount of the prepayment on deposit in the London interbank eurodollar market selected by that Bank for appropriate Lender a period beginning on the date of the prepayment and ending on the last day of the applicable Interest Period, or for a comparable period for which an appropriate rate quote may be obtained; plus
(iii) an amount equal to all costs and expenses which that Bank incurred or reasonably expects to incur in liquidating and reinvesting the prepayment. Each Bank's determination of the amount of any prepayment fee or failure to borrow fee payable under this Section 3.6(d) shall be conclusive fee, as the case may be, calculated as follows (and determined as though 100% of the Eurodollar Rate Advance had been funded in the absence of manifest error.Designated Eurodollar Market):
(e1) Any statement or certificate given principal amount of the Eurodollar Rate Advance, times ----- [number of days between the date of prepayment and the last day in the applicable Eurodollar Period], divided by a Bank under this Section 3.6 shall satisfy 360, times the requirements set forth in Section 3.6(c) with respect to requests for reimbursement under Section 3.6(a).------- ----- applicable Interest Differential; plus ----
(f2) Should all actual out-of-pocket expenses (other than those taken into account in the calculation of the Interest Differential) incurred by the Lender (excluding allocations of any Bank demand expense --------- internal to that Lender) and reasonably attributable to such payment under the provisions of Section 3.6(a) or should any Bank's Eurodollar Advances be suspended under the provisions of Section 3.6(b), then without limiting its obligation to reimburse any Bank for compensation claimed by such Bank pursuant to this Section 3.6, Borrower may, within 60 days following such occurrence, treat that Bank as an "Affected Bank" under Section 3.5(d), and exercise the remedies set forth in such Section 3.5(d).prepayment;
Appears in 1 contract
Samples: Loan Agreement (Nevada Power Co)
Eurodollar Fees and Costs. (a) If If, after the date hereof, the existence or occurrence of any Regulatory Development after the Closing DateSpecial Eurodollar Circumstance:
(i) shall subject any Bank or its Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any Eurodollar Advance Rate Advance, its Note or its obligation to make Eurodollar Rate Advances, or shall change the basis of taxation of payments to any 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 Advance Rate Advance, its Note or its obligation to make Eurodollar Rate Advances (except for changes in any tax on the overall net income, gross income or gross receipts of such Bank or its Eurodollar Lending Office);
(ii) shall impose, modify or deem applicable any reserve (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System), special deposit or similar requirements (excluding any such requirement included in any applicable Eurodollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended by, any Bank or its Eurodollar Lending Office; or
(iii) shall impose on any Bank or its Eurodollar Lending Office or the London interbank eurodollar market Designated Eurodollar Market any other condition affecting any Eurodollar Advance or Rate Advance, its Note, its obligation to make Eurodollar AdvancesRate Advances or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing, as determined by such Bank, increases the cost to such Bank or its Eurodollar Lending Office of making or maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Advance Rate Advance, its Note or its obligation to make Eurodollar Rate Advances or reduces the amount of any sum received or receivable by such Bank or its Eurodollar Lending Office with respect to any Eurodollar Advance Rate Advance, its Note or its obligation to make Eurodollar Rate Advances (assuming such Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in the London interbank eurodollar marketDesignated Eurodollar Market), then, within 15 days after upon demand by such Bank (with a copy to the Administrative Agent), Borrower shall pay to such Bank such additional amount or amounts as will compensate such Bank for such increased cost or reduction (determined as though such Bank's Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in the London interbank eurodollar marketDesignated Eurodollar Market); provided that Borrower shall not be liable to any Bank for any such increased cost or reduction pursuant to this Section in respect of any period which is more than 6 months prior to such Bank's demand for such compensation. A statement of any 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 Restatement Date, which will entitle such Bank to compensation pursuant to this Section, and agrees to designate a different Eurodollar Lending Office promptly 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 disadvantageous to such Bank. If any Bank claims compensation under this Section, Borrower may at any time, upon at least 4 Business 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 3.6(d3.7(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.
(b) If If, after the Closing Date date hereof, the existence or occurrence of any Regulatory Development Special Eurodollar Circumstance shall, in the opinion of any Bank, make it unlawful unlawful, impossible or impossible impracticable for such Bank or its Eurodollar Lending Office to make, maintain or fund its portion of any Eurodollar Rate Loan, or materially restrict the authority of such Bank to purchase or sell, or to take deposits of, dollars in the London interbank eurodollar marketDesignated 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 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 Banks and Borrower. Before giving any notice to the Administrative Agent pursuant to this Section, such Bank shall designate a different Lending Office if such designation will avoid the need for giving such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. Upon receipt of such notice, the outstanding principal amount of such Bank's Eurodollar Rate Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances with Interest Periods corresponding to the Eurodollar Rate Loans of which such Eurodollar Advances were a part on either (1) the last day of the Interest Eurodollar Period(s) applicable to such Eurodollar Rate Advances if such Bank may lawfully continue to maintain and fund such Eurodollar Rate Advances to such day(s) or (2) immediately if such 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(d3.7(d). In the event that any Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any Eurodollar Rate Loan, such Bank shall fund such amount as a Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a Base Rate Advance.
(c) If, with respect to any proposed Eurodollar Rate Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the London interbank eurodollar market Designated Eurodollar Market generally that are beyond the reasonable control of the Banks, deposits in dollars (in the applicable amounts) are not being offered to each of the Banks in the London interbank eurodollar market Designated Eurodollar Market for the applicable Interest Eurodollar Period; or
(ii) the Required Majority Banks advise the Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent (A) does not represent the effective pricing to such Banks 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 Banks of making the applicable Eurodollar Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower and the Banks, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the 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 Notice that specifies a Eurodollar Rate Loan, such Request for Loan Notice shall be deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any Eurodollar Rate Advance (other than as the result of a conversion required under Section 3.6(b3.7(b)) ), on a day other than the last day in the applicable Interest Eurodollar Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower to borrow on the date or in the amount specified for a Eurodollar Rate Loan in any Loan NoticeRequest for Loan, Borrower shall pay to each the appropriate Bank an amount equal a prepayment fee or failure to borrow fee, as the sum ofcase may be, calculated as follows (and determined as though 100% of the Eurodollar Rate Advance had been funded in the Designated Eurodollar Market):
(i) $250principal amount of the Eurodollar Rate Advance, times [number of days between the date of prepayment and the last day in the applicable Eurodollar Period], divided by 360, times the applicable Interest Differential; plus
(ii) all actual out-of-pocket expenses (other than those taken into account in the amount, if any, by which (x) the additional interest that would have accrued (without any Applicable Eurodollar Rate Spread) on the principal amount prepaid on account calculation of the Eurodollar Advance had it remained outstanding until Interest Differential) incurred by the last day Bank (excluding allocations of any expense internal to that Bank) and reasonably attributable to such payment or prepayment; provided that no prepayment fee or failure to borrow fee shall be payable (and no credit or rebate shall be required) if the product of the applicable Interest Period, exceeds (y) the interest that Bank could recover by placing funds in the amount of the prepayment on deposit in the London interbank eurodollar market selected by that Bank for foregoing formula is not a period beginning on the date of the prepayment and ending on the last day of the applicable Interest Period, or for a comparable period for which an appropriate rate quote may be obtained; plus
(iii) an amount equal to all costs and expenses which that Bank incurred or reasonably expects to incur in liquidating and reinvesting the prepaymentpositive number. Each Bank's determination of the amount of any prepayment fee or failure to borrow fee payable under this Section 3.6(d3.7(d) shall be based upon the Administrative Agent's determination of the applicable Interest Differential but shall otherwise be conclusive in the absence of manifest error.
(e) Any statement or certificate given by a Bank under this Section 3.6 shall satisfy the requirements set forth in Section 3.6(c) with respect to requests for reimbursement under Section 3.6(a).
(f) Should any Bank demand payment under the provisions of Section 3.6(a) or should any Bank's Eurodollar Advances be suspended under the provisions of Section 3.6(b), then without limiting its obligation to reimburse any Bank for compensation claimed by such Bank pursuant to this Section 3.6, Borrower may, within 60 days following such occurrence, treat that Bank as an "Affected Bank" under Section 3.5(d), and exercise the remedies set forth in such Section 3.5(d).
Appears in 1 contract
