LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error. (b) If, after the Effective Date, the existence or occurrence of any Special Eurodollar Circumstance: (i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Advance or any other amounts due under this Agreement in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business,” and (iii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under applicable Laws; (ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or (iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market any other condition affecting any LIBOR Advance, any of its Notes evidencing LIBOR Advances, its obligation to make LIBOR Advances or this Agreement, or shall otherwise affect any of the same; (iv) and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Advance or in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market), then, within five Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market). A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. (c) If, after the Effective Date, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Market, or to determine or charge interest rates based upon LIBOR, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower and the Co-Borrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances on either (1) the last day of the Interest Period(s) applicable to such LIBOR Advances if such Lender may lawfully continue to maintain and fund such LIBOR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or Advance, such 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. Any Lender whose obligation to make LIBOR Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension. (d) If, with respect to any proposed LIBOR Loan: (i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market for the applicable Interest Period; or (ii) the Requisite Lenders advise the Administrative Agent that LIBOR as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market in the relevant amount for the applicable Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such period. (e) Upon payment or prepayment of any LIBOR Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as the case may be (determined as though 100% of that Lender’s LIBOR Advance had been funded in the Designated Market), equal to the sum of: (i) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus (ii) all out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error. (f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender. (g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section: (i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and (ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.
Appears in 2 contracts
Samples: Loan Agreement (MGM Resorts International), Loan Agreement (MGM Resorts International)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Rate Advance or any other amounts due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income (including taxes on gross income imposed in lieu of net income, gross income minimum taxes or gross receipts, (iibranch profits taxes) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business,” and (iiiii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed failed, for any reason, to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under required by applicable LawsLaws to establish a complete exemption;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market London interbank market any other condition affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR AdvancesRate Loans, its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market)Rate Advances, then, within five Business (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Rate Advance in the Designated MarketLondon interbank market), provided, that with respect to any additional amount arising as a result of the occurrence of an event described in clause (i) above, Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder subsection shall be conclusive in the absence of manifest error.
(cb) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Rate Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated MarketLondon interbank market, or to determine or charge interest rates based upon LIBORthe LIBOR Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make LIBOR Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (1) the last day of the Interest LIBOR Period(s) applicable to such LIBOR Rate Advances if such Lender may lawfully continue to maintain and fund such LIBOR Rate Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this SectionSection 3.5(d). Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Closing Date, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth aboveabove (or those set forth in clause (d) below), to make, maintain or fund its portion of any LIBOR Loan or AdvanceRate Loan, such Lender shall fund such amount as a an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a an Alternate Base Rate Advance. Any Lender whose obligation to make LIBOR Rate Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed LIBOR Rate Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market London interbank market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market London interbank market for the applicable Interest LIBOR Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the LIBOR Rate as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market London interbank market in the relevant amount for the applicable Interest LIBOR Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Rate Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodsuspended.
(ed) Upon Except for a failure caused by any Lender’s default, Borrower shall indemnify the Lenders against any loss or expense that the Lenders may sustain or incur (including, without limitation, any loss or expense sustained or incurred in obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any LIBOR Rate Loans) as a consequence of (i) any failure of Borrower to make any payment when due of any amount due hereunder, (ii) any failure of Borrower to borrow, continue or convert a LIBOR Rate Loan on a date specified therefor in a notice thereof, (iii) any failure to fulfill on the scheduled commencement date of any LIBOR Period hereunder the applicable conditions set forth herein as prerequisites to an Advance that is to be a LIBOR Rate Loan or to the election of a LIBOR Rate, (iv) any failure to borrow hereunder after a request for a LIBOR Rate Loan has been given, (v) any payment or prepayment of any LIBOR Advance (other than as the result permitted or mandated hereunder of a conversion required under clause (c) of this Section) LIBOR Rate Loan on a day date other than the last day in of the applicable Interest Period (whether voluntarilyrelevant LIBOR Period, involuntarily, by reason including without limitation upon acceleration following an Event of accelerationDefault, or otherwise)(vi) the occurrence of any Event of Default, including but not limited to any loss or upon the failure of Borrower expense sustained or any Co-Borrower (for a reason other than the failure of a Lender incurred or to make an Advance) be sustained or incurred in liquidating or employing deposits from third parties acquired to borrow on the date effect or in the amount specified for maintain a LIBOR Advance in any Request for Rate Loan. Without limiting the foregoing, such loss or upon expense shall conclusively be deemed to include a “Breakage Fee” (as defined below). The term “Breakage Fee” shall mean that sum equal to the greater of $200 or the financial loss incurred by the Lenders resulting from prepayment or failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to borrow, calculated by the Administrative Agent pursuant to Section 3.1(f), Borrower and as the Co-Borrowers shall pay to difference between the appropriate Lender within 10 Business Days after demand a amount of interest the Lenders would have earned (from like investments in the Money Markets (as hereinafter defined) as of the first day of the applicable LIBOR Period) had prepayment fee, or failure to borrow fee or failure to prepay fee, as not occurred and the case may be interest the Lenders would actually earn (determined as though 100% of that Lender’s LIBOR Advance had been funded from like investments in the Designated Market), equal to the sum of:
(i) the principal amount Money Markets as of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, borrow) as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product a result of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by redeployment of funds from the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination Borrower agrees that the Breakage Fee shall not be discounted to its present value. Any voluntary prepayment of a LIBOR Rate Loan shall be in an amount equal to the remaining entire principal balance of such LIBOR Rate Loan. The term “Money Markets” refers to one or more wholesale funding markets available to Lenders, including negotiable certificates of deposit, commercial paper, Eurodollar deposits, bank notes, federal funds and others. The Administrative Agent shall provide to Borrower a statement, signed by an officer of the amount Administrative Agent, explaining any such loss or expense and setting forth the computation of any prepayment feethe Breakage Fee pursuant to the preceding provisions which, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lenderbe conclusive and binding on Borrower.
Appears in 2 contracts
Samples: Unsecured Credit Agreement (BioMed Realty L P), Unsecured Credit Agreement (BioMed Realty Trust Inc)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i1) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Advance or any other amounts due under this Agreement in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances, excluding EXCLUDING, in the case of each Lender, the Administrative Agent and each Eligible Assignee, and any Affiliate or LIBOR Office thereof, (i) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) receipts or capital and franchise taxes imposed on it, by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “"doing business,” " (unless it would not be doing business in such jurisdiction (or political subdivision thereof) absent the transactions contemplated hereby), (ii) any withholding taxes or other taxes based on gross income imposed by the United States of America (other than withholding taxes and taxes based on gross income resulting solely from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by any Governmental Agency) or (iii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including INCLUDING, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System, BUT EXCLUDING the Reserve Percentage taken into account in calculating the LIBOR), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii3) shall impose on any Lender or its LIBOR Lending Office or the Designated LIBOR Market any other condition affecting any LIBOR Advance, any of its Notes evidencing LIBOR AdvancesLoans, its obligation to make LIBOR Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Advance or in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances (assuming such Lender’s 's LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated LIBOR Market), then, within five Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated LIBOR Market). Borrower hereby indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within ten (10) Business Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, reasonable legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions -40- provided for or contemplated herein, as a direct result of the existence or occurrence of any Special LIBOR Circumstance. A statement of any Lender claiming compensation under this clause (b) subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Lender agrees to promptly notify Borrower of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to this Section, and agrees to designate a different LIBOR Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. If any Lender claims compensation under this Section, Borrower may at any time, upon at least four (4) Eurodollar Market Days' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment PLUS any prepayment fee required by Section 3.7(d), pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances.
(cb) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any Lender, shall make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated LIBOR Market, or to determine or charge interest rates based upon the LIBOR, and such Lender shall so notify the Administrative Agent, and if the Administrative Agent reasonably determines that the Special LIBOR Circumstances have broad applicability to Lenders in the market for syndicated loans of the general type described in this Agreement, then such the affected Lender’s 's obligation to make LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s 's LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances with Interest Periods corresponding to the LIBOR Loans of which such LIBOR Advances were a part on either (1) the last day of the Interest Period(s) applicable to such LIBOR Advances if such Lender may lawfully continue to maintain and fund such LIBOR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Advances to such day(s), provided PROVIDED that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this SectionSection 3.7(d). Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Effective Date, which will cause that Lender to notify the Administrative Agent under this SectionSection 3.7(b), and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or AdvanceLoan, such 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. Any Lender whose obligation to make LIBOR Advances -41- has been suspended under this Section 3.7(b) shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed LIBOR Loan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated LIBOR Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated LIBOR Market for the applicable Interest Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the LIBOR as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated LIBOR Market in the relevant amount for the applicable Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above suspended. If at the time of such notice there is the basis then pending a Request for Loan that specifies a LIBOR Loan, such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect Request for Loan shall be deemed to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodspecify a Base Rate Loan.
(ed) Upon payment or prepayment of any LIBOR Advance (other than OTHER THAN as the result of a conversion required under clause (c) of this Section) Section 3.7(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 or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance Loan in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 ten (10) Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay borrow fee, as the case may be (determined as though 100% of that Lender’s the LIBOR Advance had been funded in the Designated LIBOR Market), ) equal to the sum SUM of:
(i1) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaidborrowed, as the case may be, times (TIMES the number of days from and including between the date of prepayment or failure to borrow or prepayborrow, as applicable, to but excluding and the last day in the applicable Interest Period divided by Period, DIVIDED BY 360) times , TIMES the applicable Interest Differential (provided PROVIDED that the product of the foregoing formula must be a positive number); plusPLUS
(ii2) all reasonable out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section 3.7(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.
Appears in 2 contracts
Samples: Loan Agreement (Wdra Food Service Inc), Loan Agreement (Wheeling Land Development Corp)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Rate Advance or any other amounts due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Advances or its obligation to make LIBOR Rate Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income (including taxes on gross income imposed in lieu of net income, gross income minimum taxes or gross receipts, (iibranch profits taxes) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business,” and (iiiii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed failed, for any reason, to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.2118.21, to the extent such forms are then available under required by applicable LawsLaws to establish a complete exemption;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market London interbank market any other condition affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Advances, its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Advances or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market)Rate Advances, then, within five Business (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Rate Advance in the Designated MarketLondon interbank market), provided, that with respect to any additional amount arising as a result of the occurrence of an event described in clause (i) above, Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder subsection shall be conclusive in the absence of manifest error.
(cb) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Rate Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated MarketLondon interbank market, or to determine or charge interest rates based upon LIBORthe LIBOR Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make LIBOR Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (1) the last day of the Interest LIBOR Period(s) applicable to such LIBOR Rate Advances if such Lender may lawfully continue to maintain and fund such LIBOR Rate Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee Breakage Fee under clause (e) of this SectionSection 3.5(d). Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Closing Date, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth aboveabove (or those set forth in clause (c) below), to make, maintain or fund its portion of any LIBOR Loan or AdvanceRate Loan, such Lender shall fund such amount as a an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a an Alternate Base Rate Advance. Any Lender whose obligation to make LIBOR Rate Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed LIBOR Rate Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market London interbank market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market London interbank market for the applicable Interest LIBOR Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the LIBOR Rate as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market London interbank market in the relevant amount for the applicable Interest LIBOR Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Rate Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodsuspended.
(ed) Upon Except for a failure caused by any Lender’s default, Borrower shall indemnify the Lenders against any loss or expense that the Lenders may sustain or incur (including, without limitation, any loss or expense sustained or incurred in obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any LIBOR Rate Loans) as a consequence of (i) any failure of Borrower to make any payment when due of any amount due hereunder, (ii) any failure of Borrower to borrow, continue or convert a LIBOR Rate Loan on a date specified therefor in a notice thereof, (iii) any failure to fulfill on the scheduled commencement date of any LIBOR Period hereunder the applicable conditions set forth herein as prerequisites to an Advance that is to be a LIBOR Rate Loan or to the election of a LIBOR Rate, (iv) any failure to borrow hereunder after a request for a LIBOR Rate Loan has been given, (v) any payment or prepayment of any LIBOR Advance (other than as the result permitted or mandated hereunder of a conversion required under clause (c) of this Section) LIBOR Rate Loan on a day date other than the last day in of the applicable Interest Period (whether voluntarilyrelevant LIBOR Period, involuntarily, by reason including without limitation upon acceleration following an Event of accelerationDefault, or otherwise)(vi) the occurrence of any Event of Default, including but not limited to any loss or upon the failure of Borrower expense sustained or any Co-Borrower (for a reason other than the failure of a Lender incurred or to make an Advance) be sustained or incurred in liquidating or employing deposits from third parties acquired to borrow on the date effect or in the amount specified for maintain a LIBOR Advance in any Request for Rate Loan. Without limiting the foregoing, such loss or upon expense shall conclusively be deemed to include a “Breakage Fee” (as defined below). The term “Breakage Fee” shall mean that sum equal to the greater of $200 or the financial loss incurred by the Lenders resulting from prepayment or failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to borrow, calculated by the Administrative Agent pursuant to Section 3.1(f), Borrower and as the Co-Borrowers shall pay to difference between the appropriate Lender within 10 Business Days after demand a amount of interest the Lenders would have earned (from like investments in the Money Markets (as hereinafter defined) as of the first day of the applicable LIBOR Period) had prepayment fee, or failure to borrow fee or failure to prepay fee, as not occurred and the case may be interest the Lenders would actually earn (determined as though 100% of that Lender’s LIBOR Advance had been funded from like investments in the Designated Market), equal to the sum of:
(i) the principal amount Money Markets as of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, borrow) as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product a result of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by redeployment of funds from the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination Borrower agrees that the Breakage Fee shall not be discounted to its present value. Any voluntary prepayment of a LIBOR Rate Loan shall be in an amount equal to the remaining entire principal balance of such LIBOR Rate Loan. The term “Money Markets” refers to one or more wholesale funding markets available to Lenders, including negotiable certificates of deposit, commercial paper, Eurodollar deposits, bank notes, federal funds and others. The Administrative Agent shall provide to Borrower a statement, signed by an officer of the amount Administrative Agent, explaining any such loss or expense and setting forth the computation of any prepayment feethe Breakage Fee pursuant to the preceding provisions which, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lenderbe conclusive and binding on Borrower.
Appears in 1 contract
Samples: Secured Acquisition and Construction Loan Agreement (BioMed Realty Trust Inc)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Rate Advance or any other amounts due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income (including taxes on gross income imposed in lieu of net income, gross income minimum taxes or gross receipts, (iibranch profits taxes) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business,” and (iiiii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed failed, for any reason, to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under required by applicable LawsLaws to establish a complete exemption;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market London interbank market any other condition affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR AdvancesRate Loans, its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market)Rate Advances, then, within five Business (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Rate Advance in the Designated MarketLondon interbank market), provided, that with respect to any additional amount arising as a result of the occurrence of an event described in clause (i) above, Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder subsection shall be conclusive in the absence of manifest error.
(cb) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Rate Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated MarketLondon interbank market, or to determine or charge interest rates based upon LIBORthe LIBOR Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make LIBOR Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (1) the last day of the Interest LIBOR Period(s) applicable to such LIBOR Rate Advances if such Lender may lawfully continue to maintain and fund such LIBOR Rate Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this SectionSection 3.8(e). Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Closing Date, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth aboveabove (or those set forth in clause (d) below), to make, maintain or fund its portion of any LIBOR Loan or AdvanceRate Loan, such Lender shall fund such amount as a an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a an Alternate Base Rate Advance. Any Lender whose obligation to make LIBOR Rate Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed LIBOR Rate Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market London interbank market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market London interbank market for the applicable Interest LIBOR Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the LIBOR Rate as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market London interbank market in the relevant amount for the applicable Interest LIBOR Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Rate Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodsuspended.
(ed) Upon Except for a failure caused by any Lender’s default, Borrower shall indemnify the Lenders against any loss or expense that the Lenders may sustain or incur (including, without limitation, any loss or expense sustained or incurred in obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any LIBOR Rate Loans) as a consequence of (i) any failure of Borrower to make any payment when due of any amount due hereunder, (ii) any failure of Borrower to borrow, continue or convert a LIBOR Rate Loan on a date specified therefor in a notice thereof, (iii) any failure to fulfill on the scheduled commencement date of any LIBOR Period hereunder the applicable conditions set forth herein as prerequisites to an Advance that is to be a LIBOR Rate Loan or to the election of a LIBOR Rate, (iv) any failure to borrow hereunder after a request for a LIBOR Rate Loan has been given, (v) any payment or prepayment of any LIBOR Advance (other than as the result permitted or mandated hereunder of a conversion required under clause (c) of this Section) LIBOR Rate Loan on a day date other than the last day in of the applicable Interest Period (whether voluntarilyrelevant LIBOR Period, involuntarily, by reason including without limitation upon acceleration following an Event of accelerationDefault, or otherwise)(vi) the occurrence of any Event of Default, including but not limited to any loss or upon the failure of Borrower expense sustained or any Co-Borrower (for a reason other than the failure of a Lender incurred or to make an Advance) be sustained or incurred in liquidating or employing deposits from third parties acquired to borrow on the date effect or in the amount specified for maintain a LIBOR Advance in any Request for Rate Loan. Without limiting the foregoing, such loss or upon expense shall conclusively be deemed to include a “Breakage Fee” (as defined below). The term “Breakage Fee” shall mean that sum equal to the greater of $200 or the financial loss incurred by the Lenders resulting from prepayment or failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to borrow, calculated by the Administrative Agent pursuant to Section 3.1(f), Borrower and as the Co-Borrowers shall pay to difference between the appropriate Lender within 10 Business Days after demand a amount of interest the Lenders would have earned (from like investments in the Money Markets (as hereinafter defined) as of the first day of the applicable LIBOR Period) had prepayment fee, or failure to borrow fee or failure to prepay fee, as not occurred and the case may be interest the Lenders would actually earn (determined as though 100% of that Lender’s LIBOR Advance had been funded from like investments in the Designated Market), equal to the sum of:
(i) the principal amount Money Markets as of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, borrow) as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product a result of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by redeployment of funds from the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination Borrower agrees that the Breakage Fee shall not be discounted to its present value. Any voluntary prepayment of a LIBOR Rate Loan shall be in an amount equal to the remaining entire principal balance of such LIBOR Rate Loan. The term “Money Markets” refers to one or more wholesale funding markets available to Lenders, including negotiable certificates of deposit, commercial paper, Eurodollar deposits, bank notes, federal funds and others. The Administrative Agent shall provide to Borrower a statement, signed by an officer of the amount Administrative Agent, explaining any such loss or expense and setting forth the computation of any prepayment feethe Breakage Fee pursuant to the preceding provisions which, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lenderbe conclusive and binding on Borrower.
Appears in 1 contract
Samples: Secured Term Loan Agreement (BioMed Realty Trust Inc)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “"eurocurrency liabilities”") of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i1) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Advance or any other amounts due under this Agreement in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “"doing business,” " and (iii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Co-Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii3) shall impose on any Lender or its LIBOR Lending Office or the Designated Market any other condition affecting any LIBOR Advance, any of its Notes evidencing LIBOR Advances, its obligation to make LIBOR Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Advance or in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances (assuming such Lender’s 's LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market), then, within five Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market). A statement of any Lender claiming compensation under this clause (b) subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Market, or to determine or charge interest rates based upon LIBOR, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower and the Co-Borrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s 's LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances on either (1) the last day of the Interest Period(s) applicable to such LIBOR Advances if such Lender may lawfully continue to maintain and fund such LIBOR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Closing Date of which it has actual knowledge, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or Advance, such 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. Any Lender whose obligation to make LIBOR Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Loan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market for the applicable Interest Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that LIBOR as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market in the relevant amount for the applicable Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Co-Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such period.
(e) Upon payment or prepayment of any LIBOR Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for LoanLoan or Competitive Bid Request, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as the case may be (determined as though 100% of that Lender’s 's LIBOR Advance had been funded in the Designated Market), equal to the sum of:
(i1) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii2) all out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ ' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.2411.26; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.
Appears in 1 contract
Samples: Loan Agreement (MGM Mirage)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i1) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Advance or any other amounts due under this Agreement in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances, excluding excluding, in the case of each Lender, the Administrative Agent and each Eligible Assignee, and any Affiliate or LIBOR Office thereof, (i) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) receipts or capital and franchise taxes imposed on it, by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business,” (unless it would not be doing business in such jurisdiction (or political subdivision thereof) absent the transactions contemplated hereby), (ii) any withholding taxes or other taxes based on gross income imposed by the United States of America (other than withholding taxes and taxes based on gross income resulting solely from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by any Governmental Agency) or (iii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System, but excluding the Reserve Percentage taken into account in calculating the LIBOR), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii3) shall impose on any Lender or its LIBOR Lending Office or the Designated Eurodollar Market any other condition affecting any LIBOR Advance, any of its Notes evidencing LIBOR AdvancesLoans, its obligation to make LIBOR Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Advance or in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Eurodollar Market), then, within five Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Eurodollar Market). Borrower hereby indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within ten (10) Business Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, reasonable legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions provided for or contemplated herein, as a direct result of the existence or occurrence of any Special LIBOR Circumstance. A statement of any Lender claiming compensation under this clause (b) subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Lender agrees to promptly notify Borrower of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to this Section, and agrees to designate a different LIBOR Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. If any Lender claims compensation under this Section, Borrower may at any time, upon at least four (4) Eurodollar Market Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee required by Section 3.7(d), pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances.
(cb) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any Lender, shall make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon the LIBOR, and such Lender shall so notify the Administrative Agent, and if the Administrative Agent reasonably determines that the Special LIBOR Circumstances have broad applicability to Lenders in the market for syndicated loans of the general type described in this Agreement, then such the affected Lender’s obligation to make LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances with Interest Periods corresponding to the LIBOR Loans of which such LIBOR Advances were a part on either (1) the last day of the Interest Period(s) applicable to such LIBOR Advances if such Lender may lawfully continue to maintain and fund such LIBOR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this SectionSection 3.7(d). Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Effective Date, which will cause that Lender to notify the Administrative Agent under this SectionSection 3.7(b), and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or AdvanceLoan, such 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. Any Lender whose obligation to make LIBOR Advances has been suspended under this Section 3.7(b) shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed LIBOR Loan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Interest Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the LIBOR 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 Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above suspended. If at the time of such notice there is the basis then pending a Request for Loan that specifies a LIBOR Loan, such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect Request for Loan shall be deemed to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodspecify a Base Rate Loan.
(ed) Upon payment or prepayment of any LIBOR Advance (other than as the result of a conversion required under clause (c) of this Section) Section 3.7(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 or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance Loan in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 ten (10) Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay borrow fee, as the case may be (determined as though 100% of that Lender’s the LIBOR Advance had been funded in the Designated Eurodollar Market), ) equal to the sum of:
(i1) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaidborrowed, as the case may be, times (the number of days from and including between the date of prepayment or failure to borrow or prepayborrow, as applicable, to but excluding and the last day in the applicable Interest Period Period, divided by 360) , times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii2) all reasonable out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section 3.7(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.
Appears in 1 contract
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Rate Advance or any other amounts due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income (including taxes on gross income imposed in lieu of net income, gross income minimum taxes or gross receipts, (iibranch profits taxes) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business,” and (iiiii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed failed, for any reason, to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under required by applicable LawsLaws to establish a complete exemption;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market London interbank market any other condition affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR AdvancesRate Loans, its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market)Rate Advances, then, within five Business (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Rate Advance in the Designated MarketLondon interbank market), provided, that with respect to any additional amount arising as a result of the occurrence of an event described in clause (i) above, Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder subsection shall be conclusive in the absence of manifest error.
(cb) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Rate Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated MarketLondon interbank market, or to determine or charge interest rates based upon LIBORthe LIBOR Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make LIBOR Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (1) the last day of the Interest LIBOR Period(s) applicable to such LIBOR Rate Advances if such Lender may lawfully continue to maintain and fund such LIBOR Rate Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this SectionSection 3.5(d). Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Closing Date, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth aboveabove (or those set forth in clause (c) below), to make, maintain or fund its portion of any LIBOR Loan or AdvanceRate Loan, such Lender shall fund such amount as a an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a an Alternate Base Rate Advance. Any Lender whose obligation to make LIBOR Rate Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed LIBOR Rate Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market London interbank market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market London interbank market for the applicable Interest LIBOR Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the LIBOR Rate as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market London interbank market in the relevant amount for the applicable Interest LIBOR Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Rate Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodsuspended.
(ed) Upon Except for a failure caused by any Lender’s default, Borrower shall indemnify the Lenders against any loss or expense that the Lenders may sustain or incur (including, without limitation, any loss or expense sustained or incurred in obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any LIBOR Rate Loans) as a consequence of (i) any failure of Borrower to make any payment when due of any amount due hereunder, (ii) any failure of Borrower to borrow, continue or convert a LIBOR Rate Loan on a date specified therefor in a notice thereof, (iii) any failure to fulfill on the scheduled commencement date of any LIBOR Period hereunder the applicable conditions set forth herein as prerequisites to an Advance that is to be a LIBOR Rate Loan or to the election of a LIBOR Rate, (iv) any failure to borrow hereunder after a request for a LIBOR Rate Loan has been given, (v) any payment or prepayment of any LIBOR Advance (other than as the result permitted or mandated hereunder of a conversion required under clause (c) of this Section) LIBOR Rate Loan on a day date other than the last day in of the applicable Interest Period (whether voluntarilyrelevant LIBOR Period, involuntarily, by reason including without limitation upon acceleration following an Event of accelerationDefault, or otherwise)(vi) the occurrence of any Event of Default, including but not limited to any loss or upon the failure of Borrower expense sustained or any Co-Borrower (for a reason other than the failure of a Lender incurred or to make an Advance) be sustained or incurred in liquidating or employing deposits from third parties acquired to borrow on the date effect or in the amount specified for maintain a LIBOR Advance in any Request for Rate Loan. Without limiting the foregoing, such loss or upon expense shall conclusively be deemed to include a “Breakage Fee” (as defined below). The term “Breakage Fee” shall mean that sum equal to the greater of $200 or the financial loss incurred by the Lenders resulting from prepayment or failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to borrow, calculated by the Administrative Agent pursuant to Section 3.1(f), Borrower and as the Co-Borrowers shall pay to difference between the appropriate Lender within 10 Business Days after demand a amount of interest the Lenders would have earned (from like investments in the Money Markets (as hereinafter defined) as of the first day of the applicable LIBOR Period) had prepayment fee, or failure to borrow fee or failure to prepay fee, as not occurred and the case may be interest the Lenders would actually earn (determined as though 100% of that Lender’s LIBOR Advance had been funded from like investments in the Designated Market), equal to the sum of:
(i) the principal amount Money Markets as of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, borrow) as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product a result of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by redeployment of funds from the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination Borrower agrees that the Breakage Fee shall not be discounted to its present value. Any voluntary prepayment of a LIBOR Rate Loan shall be in an amount equal to the remaining entire principal balance of such LIBOR Rate Loan. The term “Money Markets” refers to one or more wholesale funding markets available to Lenders, including negotiable certificates of deposit, commercial paper, Eurodollar deposits, bank notes, federal funds and others. The Administrative Agent shall provide to Borrower a statement, signed by an officer of the amount Administrative Agent, explaining any such loss or expense and setting forth the computation of any prepayment feethe Breakage Fee pursuant to the preceding provisions which, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lenderbe conclusive and binding on Borrower.
Appears in 1 contract
Samples: Secured Bridge Loan Agreement (BioMed Realty Trust Inc)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error[Intentionally Omitted].
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender Bank or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any Lender Bank attributable to the principal of or interest on any LIBOR Rate Advance or any other amounts due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income (including taxes on gross income imposed in lieu of net income, gross income minimum taxes or gross receipts, (iibranch profits taxes) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “"doing business,” " and (iiiii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed failed, for any reason, to provide Borrower or the relevant Co- Borrower Borrowers with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under required by applicable LawsLaws to establish a complete exemption;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its LIBOR Lending Office); or
(iii) shall impose on any Lender Bank or its LIBOR Lending Office or the Designated Market London interbank market any other condition affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR AdvancesRate Loans, its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market)Rate Advances, then, within five Business (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such increased cost or reduction (determined as though such Lender’s Bank's LIBOR Lending Office had funded 100% of its LIBOR Rate Advance in the Designated MarketLondon interbank market), provided, that with respect to any additional amount arising as a result of the occurrence of an event described in clause (i) above, Borrowers shall not be obligated to pay any such amount which arose prior to the date which is ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand. A statement of any Lender Bank claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder subsection shall be conclusive in the absence of manifest error.
(c) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful or impossible for such Lender Bank or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Rate Loan, or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated MarketLondon interbank market, or to determine or charge interest rates based upon LIBORthe LIBOR Rate, and such Lender Bank shall so notify the Administrative Agent, then such Lender’s Bank's obligation to make LIBOR Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Banks and the Co-Borrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s Bank's LIBOR Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (1) the last day of the Interest LIBOR Period(s) applicable to such LIBOR Rate Advances if such Lender Bank may lawfully continue to maintain and fund such LIBOR Rate Advances to such day(s) or (2) immediately if such Lender Bank may not lawfully continue to fund and maintain such LIBOR Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this SectionSection 3.8(e). Each Lender Bank agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Closing Date, which will cause that Lender Bank to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth aboveabove (or those set forth in clause (d) below), to make, maintain or fund its portion of any LIBOR Loan or AdvanceRate Loan, such Lender Bank shall fund such amount as a an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a an Alternate Base Rate Advance. Any Lender Bank whose obligation to make LIBOR Rate Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower Borrowers of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Rate Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market London interbank market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Bank in the Designated Market London interbank market for the applicable Interest LIBOR Period; or
(ii) the Requisite Lenders Banks advise the Administrative Agent that the LIBOR Rate as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Market London interbank market in the relevant amount for the applicable Interest LIBOR Period, or (ii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable LIBOR Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower Borrowers and the LendersBanks, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower Borrowers that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Banks to make any future LIBOR Rate Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodsuspended.
(e) Upon payment Except for a failure caused by any Bank's default, Borrowers shall indemnify the Banks against any loss or prepayment of expense that the Banks may sustain or incur (including, without limitation, any loss or expense sustained or incurred in obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any LIBOR Advance (other than Rate Loans) as the result a consequence of a conversion required under clause (c) of this Section) 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 or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as the case may be (determined as though 100% of that Lender’s LIBOR Advance had been funded in the Designated Market), equal to the sum of:
(i) the principal any failure of Borrowers to make any payment when due of any amount of the LIBOR Advance prepaid or not borrowed or prepaiddue hereunder, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or any failure of Borrowers to borrow. Each Lender’s determination of the amount of any prepayment fee, failure to borrow fee continue or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate convert a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.Loan
Appears in 1 contract
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender Bank or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any Lender Bank attributable to the principal of or interest on any LIBOR Rate Advance or any other amounts due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income (including taxes on gross income imposed in lieu of net income, gross income minimum taxes or gross receipts, (iibranch profits taxes) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business,” and (iiiii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed failed, for any reason, to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under required by applicable LawsLaws to establish a complete exemption;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its LIBOR Lending Office); or
(iii) shall impose on any Lender Bank or its LIBOR Lending Office or the Designated Market London interbank market any other condition affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR AdvancesRate Loans, its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Advances Rate Advances, then, within five (assuming 5) Banking Days after demand by such LenderBank (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 LIBOR Lending Office had funded 100% of its LIBOR Rate Advance in the Designated MarketLondon interbank market), thenprovided, within five Business Days after demand by that with respect to any additional amount arising as a result of the occurrence of an event described in clause (i) above, Borrower shall not be obligated to pay any such Lender (with a copy amount which arose prior to the Administrative Agent), Borrower and date which is ninety (90) days preceding the Co-Borrowers shall pay date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market)demand. A statement of any Lender Bank claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder subsection shall be conclusive in the absence of manifest error.
(cb) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful or impossible for such Lender Bank or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Rate Loan, or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated MarketLondon interbank market, or to determine or charge interest rates based upon LIBORthe LIBOR Rate, and such Lender Bank shall so notify the Administrative Agent, then such LenderBank’s obligation to make LIBOR Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Banks and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such LenderBank’s LIBOR Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (1) the last day of the Interest LIBOR Period(s) applicable to such LIBOR Rate Advances if such Lender Bank may lawfully continue to maintain and fund such LIBOR Rate Advances to such day(s) or (2) immediately if such Lender Bank may not lawfully continue to fund and maintain such LIBOR Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this SectionSection 3.5(d). Each Lender Bank agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Closing Date, which will cause that Lender Bank to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth aboveabove (or those set forth in clause (d) below), to make, maintain or fund its portion of any LIBOR Loan or AdvanceRate Loan, such Lender Bank shall fund such amount as a an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a an Alternate Base Rate Advance. Any Lender Bank whose obligation to make LIBOR Rate Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed LIBOR Rate Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market London interbank market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Bank in the Designated Market London interbank market for the applicable Interest LIBOR Period; or
(ii) the Requisite Lenders Banks advise the Administrative Agent that the LIBOR Rate as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Market London interbank market in the relevant amount for the applicable Interest LIBOR Period, or (ii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable LIBOR Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the LendersBanks, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Banks to make any future LIBOR Rate Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodsuspended.
(ed) Upon Except for a failure caused by any Bank’s default, Borrower shall indemnify the Banks against any loss or expense that the Banks may sustain or incur (including, without limitation, any loss or expense sustained or incurred in obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any LIBOR Rate Loans) as a consequence of (i) any failure of Borrower to make any payment when due of any amount due hereunder, (ii) any failure of Borrower to borrow, continue or convert a LIBOR Rate Loan on a date specified therefor in a notice thereof, (iii) any failure to fulfill on the scheduled commencement date of any LIBOR Period hereunder the applicable conditions set forth herein as prerequisites to an Advance that is to be a LIBOR Rate Loan or to the election of a LIBOR Rate, (iv) any failure to borrow hereunder after a request for a LIBOR Rate Loan has been given, (v) any payment or prepayment of any LIBOR Advance (other than as the result permitted or mandated hereunder of a conversion required under clause (c) of this Section) LIBOR Rate Loan on a day date other than the last day in of the applicable Interest Period (whether voluntarilyrelevant LIBOR Period, involuntarily, by reason including without limitation upon acceleration following an Event of accelerationDefault, or otherwise)(vi) the occurrence of any Event of Default, including but not limited to any loss or upon the failure of Borrower expense sustained or any Co-Borrower (for a reason other than the failure of a Lender incurred or to make an Advance) be sustained or incurred in liquidating or employing deposits from third parties acquired to borrow on the date effect or in the amount specified for maintain a LIBOR Advance in any Request for Rate Loan. Without limiting the foregoing, such loss or upon expense shall conclusively be deemed to include a “Breakage Fee” (as defined below). The term “Breakage Fee” shall mean that sum equal to the greater of $200 or the financial loss incurred by the Banks resulting from prepayment or failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to borrow, calculated by the Administrative Agent pursuant to Section 3.1(f), Borrower and as the Co-Borrowers shall pay to difference between the appropriate Lender within 10 Business Days after demand a amount of interest the Banks would have earned (from like investments in the Money Markets (as hereinafter defined) as of the first day of the applicable LIBOR Period) had prepayment fee, or failure to borrow fee or failure to prepay fee, as not occurred and the case may be interest the Banks would actually earn (determined as though 100% of that Lender’s LIBOR Advance had been funded from like investments in the Designated Market), equal to the sum of:
(i) the principal amount Money Markets as of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, borrow) as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product a result of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by redeployment of funds from the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination Borrower agrees that the Breakage Fee shall not be discounted to its present value. Any voluntary prepayment of a LIBOR Rate Loan shall be in an amount equal to the remaining entire principal balance of such LIBOR Rate Loan. The term “Money Markets” refers to one or more wholesale funding markets available to Banks, including negotiable certificates of deposit, commercial paper, Eurodollar deposits, bank notes, federal funds and others. The Administrative Agent shall provide to Borrower a statement, signed by an officer of the amount Administrative Agent, explaining any such loss or expense and setting forth the computation of any prepayment feethe Breakage Fee pursuant to the preceding provisions which, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lenderbe conclusive and binding on Borrower.
Appears in 1 contract
Samples: Unsecured Credit Agreement (BioMed Realty Trust Inc)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Rate Advance or any other amounts due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income (including taxes on gross income imposed in lieu of net income, gross income minimum taxes or gross receipts, (iibranch profits taxes) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “"doing business,” " and (iiiii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed failed, for any reason, to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under required by applicable LawsLaws to establish a complete exemption;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market London interbank market any other condition affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR AdvancesRate Loans, its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market)Rate Advances, then, within five Business (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's LIBOR Lending Office had funded 100% of its LIBOR Rate Advance in the Designated MarketLondon interbank market), provided, that with respect to any additional amount arising as a result of the occurrence of an event described in clause (i) above, Borrower shall not be obligated to pay any such amount which arose prior to the date which is one hundred eighty (180) days preceding the date of such demand or is attributable to periods prior to the date which is one hundred eighty (180) days preceding the date of such demand. A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder subsection shall be conclusive in the absence of manifest error.
(cb) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Rate Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated MarketLondon interbank market, or to determine or charge interest rates based upon LIBORthe LIBOR Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make LIBOR Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s 's LIBOR Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (1) the last day of the Interest LIBOR Period(s) applicable to such LIBOR Rate Advances if such Lender may lawfully continue to maintain and fund such LIBOR Rate Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this SectionSection 3.8(e). Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Closing Date, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth aboveabove (or those set forth in clause (d) below), to make, maintain or fund its portion of any LIBOR Loan or AdvanceRate Loan, such Lender shall fund such amount as a an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a an Alternate Base Rate Advance. Any Lender whose obligation to make LIBOR Rate Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed LIBOR Rate Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market London interbank market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market London interbank market for the applicable Interest LIBOR Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the LIBOR Rate as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market London interbank market in the relevant amount for the applicable Interest LIBOR Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Rate Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodsuspended.
(ed) Upon Except for a failure caused by any Lender's default, Borrower shall indemnify the Lenders against any loss or expense that the Lenders may sustain or incur (including, without limitation, any loss or expense sustained or incurred in obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any LIBOR Rate Loans) as a consequence of (i) any failure of Borrower to make any payment when due of any amount due hereunder, (ii) any failure of Borrower to borrow, continue or convert a LIBOR Rate Loan on a date specified therefor in a notice thereof, (iii) any failure to fulfill on the scheduled commencement date of any LIBOR Period hereunder the applicable conditions set forth herein as prerequisites to an Advance that is to be a LIBOR Rate Loan or to the election of a LIBOR Rate, (iv) any failure to borrow hereunder after a request for a LIBOR Rate Loan has been given, (v) any payment or prepayment of any LIBOR Advance (other than as the result permitted or mandated hereunder of a conversion required under clause (c) of this Section) LIBOR Rate Loan on a day date other than the last day in of the applicable Interest Period (whether voluntarilyrelevant LIBOR Period, involuntarily, by reason including without limitation upon acceleration following an Event of accelerationDefault, or otherwise)(vi) the occurrence of any Event of Default, including but not limited to any loss or upon the failure of Borrower expense sustained or any Co-Borrower (for a reason other than the failure of a Lender incurred or to make an Advance) be sustained or incurred in liquidating or employing deposits from third parties acquired to borrow on the date effect or in the amount specified for maintain a LIBOR Advance in any Request for Rate Loan. Without limiting the foregoing, such loss or upon the failure of Borrower or any Co-Borrower expense shall conclusively be deemed to prepay include a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f"Breakage Fee" (as defined below), Borrower and the Co-Borrowers . The term "Breakage Fee" shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as the case may be (determined as though 100% of mean that Lender’s LIBOR Advance had been funded in the Designated Market), sum equal to the sum of:
(i) greater of $200 or the principal amount of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses financial loss incurred by the Lender reasonably attributable to such payment, Lenders resulting from prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation calculated by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.as
Appears in 1 contract
Samples: Secured Term Loan Agreement (BioMed Realty Trust Inc)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Rate Advance or any other amounts due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Advances or its obligation to make LIBOR Rate Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income (including taxes on gross income imposed in lieu of net income, gross income minimum taxes or gross receipts, (iibranch profits taxes) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business,” and (iiiii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed failed, for any reason, to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.2118.21, to the extent such forms are then available under required by applicable LawsLaws to establish a complete exemption;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market London interbank market any other condition affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Advances, its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Advances or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market)Rate Advances, then, within five Business (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Rate Advance in the Designated MarketLondon interbank market), provided, that with respect to any additional amount arising as a result of the occurrence of an event described in clause (i) above, Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder subsection shall be conclusive in the absence of manifest error.
(cb) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Rate Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated MarketLondon interbank market, or to determine or charge interest rates based upon LIBORthe LIBOR Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make LIBOR Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (1) the last day of the Interest LIBOR Period(s) applicable to such LIBOR Rate Advances if such Lender may lawfully continue to maintain and fund such LIBOR Rate Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this SectionSection 3.5(d). Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Closing Date, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth aboveabove (or those set forth in clause (c) below), to make, maintain or fund its portion of any LIBOR Loan or AdvanceRate Loan, such Lender shall fund such amount as a an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a an Alternate Base Rate Advance. Any Lender whose obligation to make LIBOR Rate Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed LIBOR Rate Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market London interbank market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market London interbank market for the applicable Interest LIBOR Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the LIBOR Rate as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market London interbank market in the relevant amount for the applicable Interest LIBOR Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Rate Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodsuspended.
(ed) Upon Except for a failure caused by any Lender’s default, Borrower shall indemnify the Lenders against any loss or expense that the Lenders may sustain or incur (including, without limitation, any loss or expense sustained or incurred in obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any LIBOR Rate Loans) as a consequence of (i) any failure of Borrower to make any payment when due of any amount due hereunder, (ii) any failure of Borrower to borrow, continue or convert a LIBOR Rate Loan on a date specified therefor in a notice thereof, (iii) any failure to fulfill on the scheduled commencement date of any LIBOR Period hereunder the applicable conditions set forth herein as prerequisites to an Advance that is to be a LIBOR Rate Loan or to the election of a LIBOR Rate, (iv) any failure to borrow hereunder after a request for a LIBOR Rate Loan has been given, (v) any payment or prepayment of any LIBOR Advance (other than as the result permitted or mandated hereunder of a conversion required under clause (c) of this Section) LIBOR Rate Loan on a day date other than the last day in of the applicable Interest Period (whether voluntarilyrelevant LIBOR Period, involuntarily, by reason including without limitation upon acceleration following an Event of accelerationDefault, or otherwise)(vi) the occurrence of any Event of Default, including but not limited to any loss or upon the failure of Borrower expense sustained or any Co-Borrower (for a reason other than the failure of a Lender incurred or to make an Advance) be sustained or incurred in liquidating or employing deposits from third parties acquired to borrow on the date effect or in the amount specified for maintain a LIBOR Advance in any Request for Rate Loan. Without limiting the foregoing, such loss or upon expense shall conclusively be deemed to include a “Breakage Fee” (as defined below). The term “Breakage Fee” shall mean that sum equal to the greater of $200 or the financial loss incurred by the Lenders resulting from prepayment or failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to borrow, calculated by the Administrative Agent pursuant to Section 3.1(f), Borrower and as the Co-Borrowers shall pay to difference between the appropriate Lender within 10 Business Days after demand a amount of interest the Lenders would have earned (from like investments in the Money Markets (as hereinafter defined) as of the first day of the applicable LIBOR Period) had prepayment fee, or failure to borrow fee or failure to prepay fee, as not occurred and the case may be interest the Lenders would actually earn (determined as though 100% of that Lender’s LIBOR Advance had been funded from like investments in the Designated Market), equal to the sum of:
(i) the principal amount Money Markets as of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, borrow) as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product a result of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by redeployment of funds from the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination Borrower agrees that the Breakage Fee shall not be discounted to its present value. Any voluntary prepayment of a LIBOR Rate Loan shall be in an amount equal to the remaining entire principal balance of such LIBOR Rate Loan. The term “Money Markets” refers to one or more wholesale funding markets available to Lenders, including negotiable certificates of deposit, commercial paper, Eurodollar deposits, bank notes, federal funds and others. The Administrative Agent shall provide to Borrower a statement, signed by an officer of the amount Administrative Agent, explaining any such loss or expense and setting forth the computation of any prepayment feethe Breakage Fee pursuant to the preceding provisions which, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lenderbe conclusive and binding on Borrower.
Appears in 1 contract
Samples: Secured Acquisition and Construction Loan Agreement (BioMed Realty Trust Inc)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Advance or any other amounts due under this Agreement in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances, excluding excluding, in the case of each Lender, the Administrative Agent and each Eligible Assignee, and any Affiliate or LIBOR Office thereof, (i) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) receipts or capital and franchise taxes imposed on it, by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business,” (unless it would not be doing business in such jurisdiction (or political subdivision thereof) absent the transactions contemplated hereby), (ii) any withholding taxes or other taxes based on gross income imposed by the United States of America (other than withholding taxes and taxes based on gross income resulting solely from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by any Governmental Agency) or (iii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.2111.22, to the extent such forms are then available under required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System, but excluding the Reserve Percentage taken into account in calculating the LIBOR), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated LIBOR Market any other condition affecting any LIBOR Advance, any of its Notes evidencing LIBOR AdvancesLoans, its obligation to make LIBOR Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Advance or in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated LIBOR Market), then, within five (5) Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated LIBOR Market). Borrower hereby indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within ten Business Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, reasonable legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions provided for or contemplated herein, as a direct result of the existence or occurrence of any Special LIBOR Circumstance. A statement of any Lender claiming compensation under this clause (b) subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to this Section, and agrees to designate a different LIBOR Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. If any Lender claims compensation under this Section, Borrower may at any time, upon at least four LIBOR Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee required by Section 3.8(d), pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances.
(cb) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated LIBOR Market, or to determine or charge interest rates based upon the LIBOR, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances with Interest Periods corresponding to the LIBOR Loans of which such LIBOR Advances were a part on either (1) the last day of the Interest Period(s) applicable to such LIBOR Advances if such Lender may lawfully continue to maintain and fund such LIBOR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this SectionSection 3.8(d). Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Effective Date, which will cause that Lender to notify the Administrative Agent under this SectionSection 3.8(b), and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or AdvanceLoan, such 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. Any Lender whose obligation to make LIBOR Advances has been suspended under this Section 3.8(b) shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension. In the case where Borrower becomes obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.27, provided that Borrower shall have paid such amount to that Lender and that Borrower, within the thirty (30) day period following the date of such payment, shall have notified that Lender in writing of Borrower’s intent to so remove the Lender.
(dc) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated LIBOR Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated LIBOR Market for the applicable Interest Period; or
(ii) the Requisite Required Lenders advise the Administrative Agent that the LIBOR as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated LIBOR Market in the relevant amount for the applicable Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above suspended. If at the time of such notice there is the basis then pending a Request for Loan that specifies a LIBOR Loan, such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect Request for Loan shall be deemed to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodspecify a Base Rate Loan.
(ed) Upon payment or prepayment of any LIBOR Advance (other than as the result of a conversion required under clause (c) of this Section) Section 3.8(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 or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance Loan in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 ten Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay borrow fee, as the case may be (determined as though 100% of that Lender’s the LIBOR Advance had been funded in the Designated LIBOR Market), ) equal to the sum of:
(i) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaidborrowed, as the case may be, times (the number of days from and including between the date of prepayment or failure to borrow or prepayborrow, as applicable, to but excluding and the last day in the applicable Interest Period Period, divided by 360) , times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii) all reasonable out-of-pocket expenses incurred by the each Lender which are reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section 3.8(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.
Appears in 1 contract
Samples: Credit Agreement (Ducommun Inc /De/)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i1) shall subject any Lender Bank or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to Bank of the principal of or interest on any LIBOR Rate Advance or any other amounts due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, excluding excluding, in the case of each Bank, the Administrative Agent, and each Eligible Assignee, and any Affiliate or LIBOR Lending Office thereof, (i) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) receipts or capital and franchise taxes imposed on it, by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “"doing business,” " (unless it would not be doing business in such jurisdiction (or political subdivision thereof) absent the transactions contemplated hereby), (ii) any withholding taxes or other taxes based on gross income imposed by the United States of America (other than withholding taxes and taxes based on gross income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by any Governmental Agency after the date of this Agreement) or (iii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.2111.19, to the extent such forms are then available under required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System, but excluding the LIBOR Reserve Percentage taken into account in calculating the LIBOR Rate), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its LIBOR Lending Office); or
(iii3) shall impose on any Lender Bank or its LIBOR Lending Office or the Designated LIBOR Market any other condition affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR AdvancesRate Loans, its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances (assuming such Lender’s Bank's LIBOR Lending Office had funded 100% of its LIBOR Rate Advance in the Designated LIBOR Market), then, within five Business (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such increased cost or reduction (determined as though such Lender’s Bank's LIBOR Lending Office had funded 100% of its LIBOR Rate Advance in the Designated LIBOR Market). Borrower hereby indemnifies each Bank against, and agrees to hold each Bank harmless from and reimburse such Bank within five (5) Banking Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by each Bank in connection with this Agreement, or any of the rights, obligations or transactions provided for or contemplated herein, as a result of the existence or occurrence of any Special LIBOR Circumstance. A statement of any Lender Bank claiming compensation under this clause (b) subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the Effective Date, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Market, or to determine or charge interest rates based upon LIBOR, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower and the Co-Borrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances on either (1) the last day of the Interest Period(s) applicable to such LIBOR Advances if such Lender may lawfully continue to maintain and fund such LIBOR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender Bank agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or Advance, such 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. Any Lender whose obligation to make LIBOR Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market for the applicable Interest Period; or
(ii) the Requisite Lenders advise the Administrative Agent that LIBOR as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market in the relevant amount for the applicable Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such period.
(e) Upon payment or prepayment of any LIBOR Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as the case may be (determined as though 100% of that Lender’s LIBOR Advance had been funded in the Designated Market), equal to the sum of:
(i) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Closing Date, which will entitle such Lender Bank to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender Bank claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) , Borrower and the Co-Borrowers may at any time, upon at least four Business (4) LIBOR Banking Days’ ' prior notice to the Administrative Agent and such Lender Bank and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this SectionSection 3.6( d), pay in full the affected LIBOR Rate Advances of such Lender Bank or request that such LIBOR Rate Advances be converted to Base Prime Rate Advances.
(b) If, after the date hereof, the existence or occurrence of any Special LIBOR Circumstance shall, in the opinion of any Bank, make it unlawful, impossible or impracticable for such Bank or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Rate Loan, or materially restrict the authority of such Bank to purchase or sell, or to take deposits of, Dollars in the Designated LIBOR Market, or to determine or charge interest rates based upon the LIBOR Rate, and such Bank shall so notify the Administrative Agent, then such Bank's obligation to make LIBOR Rate Advances shall be suspended for the duration of such illegality, impossibility or impracticability and the Administrative Agent forthwith shall give notice thereof to the other Banks and Borrower. Upon receipt of such notice, the outstanding principal amount of such Bank's LIBOR Rate Advances, together with accrued interest thereon, automatically shall be converted to Prime Rate Advances with Interest Periods corresponding to the LIBOR Loans of which such LIBOR Rate Advances were a part on either (1) the last day of the LIBOR Period( s) applicable to such LIBOR Rate Advances if such Bank may lawfully continue to maintain and fund such LIBOR Rate Advances to such day( s) or (2) immediately if such Bank may not lawfully continue to fund and maintain such LIBOR Rate Advances to such day( s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under Section 3.6( d). Each Bank agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will cause that Bank to notify the Administrative Agent under this Section 3.6( b), and agrees to designate a different LIBOR Lending Office if such desig- nation will avoid the need for such notice and will not, in the judgment of such Bank, otherwise be disadvantageous to such Bank. In the event that any Bank is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Rate Loan, such Bank shall fund such amount as a Prime Rate Advance for the same period of time, and such amount shall be treated in all respects as a Prime Rate Advance. Any Bank whose obligation to make LIBOR Rate Advances has been suspended under this Section 3.6( b) shall promptly notify the Administrative Agent and Borrower of the cessation of the Special LIBOR Circumstance which gave rise to such suspension.
(c) If, with respect to any proposed LIBOR Rate Loan:
(1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated LIBOR Market generally that are beyond the reasonable control of the Banks, deposits in Dollars (in the applicable amounts) are not being offered to any Bank in the Designated LIBOR Market for the applicable LIBOR Period; or
(2) the Majority Banks advise the Administrative Agent that the LIBOR Rate as determined by the Administrative Agent (i) does not represent the effective pricing to such Banks for deposits in Dollars in the Designated LIBOR Market in the relevant amount for the applicable LIBOR Period, or (ii) will not adequately and fairly reflect the cost to such Banks of making the applicable LIBOR Rate Advances; and
(ii) In then the case where Administrative Agent forthwith shall give notice thereof to Borrower and the Co-Borrowers become obligated 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 LIBOR Rate Advances shall be suspended. If at the time of such notice there is then pending a Request for Loan that specifies a LIBOR Rate Loan, such Request for Loan shall be deemed to specify a Prime Rate Loan.
(d) Upon payment or prepayment of any LIBOR Rate 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 LIBOR Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower (for a reason other than the failure of a Bank to make an Advance) to borrow on the date or in the amount specified for a LIBOR Rate Loan in any Request for Loan, Borrower shall pay to the appropriate Bank within five (5) Banking Days after demand a material prepayment fee or failure to borrow fee, as the case may be, (determined as though 100% of the LIBOR Rate Advance had been funded in the Designated LIBOR Market) equal to the sum of:
(1) principal amount of the LIBOR Rate Advance prepaid or not borrowed, as the case may be, times [number of days between the date of prepayment or failure to borrow, as applicable, and the last day in the applicable LIBOR Period], divided by 360, times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(2) all out- of- pocket expenses incurred by the Bank reasonably attributable to such payment, prepayment or failure to borrow. Each Bank's determination of the amount of any prepayment fee payable under this Section to any Lender, that Lender will 3.6( d) shall be subject to removal conclusive in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date absence of such payment, shall have notified that Lender in writing of their intent to so remove the Lendermanifest error.
Appears in 1 contract
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender Bank or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any Lender Bank attributable to the principal of or interest on any LIBOR Rate Advance or any other amounts due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income (including taxes on gross income imposed in lieu of net income, gross income minimum taxes or gross receipts, (iibranch profits taxes) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “"doing business,” " and (iiiii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed failed, for any reason, to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under required by applicable LawsLaws to establish a complete exemption;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender Bank or its LIBOR Lending Office); or
(iii) shall impose on any Lender Bank or its LIBOR Lending Office or the Designated Market London interbank market any other condition affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR AdvancesRate Loans, its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such LenderBank, increases the cost to such Lender Bank or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by such Lender Bank or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market)Rate Advances, then, within five Business (5) Banking Days after demand by such Lender Bank (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such increased cost or reduction (determined as though such Lender’s Bank's LIBOR Lending Office had funded 100% of its LIBOR Rate Advance in the Designated MarketLondon interbank market), provided, that with respect to any additional amount arising as a result of the occurrence of an event described in clause (i) above, Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand. A statement of any Lender Bank claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder subsection shall be conclusive in the absence of manifest error.
(cb) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any LenderBank, make it unlawful or impossible for such Lender Bank or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Rate Loan, or materially restrict the authority of such Lender Bank to purchase or sell, or to take deposits of, Dollars in the Designated MarketLondon interbank market, or to determine or charge interest rates based upon LIBORthe LIBOR Rate, and such Lender Bank shall so notify the Administrative Agent, then such Lender’s Bank's obligation to make LIBOR Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Banks and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s Bank's LIBOR Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (1) the last day of the Interest LIBOR Period(s) applicable to such LIBOR Rate Advances if such Lender Bank may lawfully continue to maintain and fund such LIBOR Rate Advances to such day(s) or (2) immediately if such Lender Bank may not lawfully continue to fund and maintain such LIBOR Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this SectionSection 3.8(e). Each Lender Bank agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Closing Date, which will cause that Lender Bank to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such LenderBank, otherwise be materially disadvantageous to such LenderBank. In the event that any Lender Bank is unable, for the reasons set forth aboveabove (or those set forth in clause (d) below), to make, maintain or fund its portion of any LIBOR Loan or AdvanceRate Loan, such Lender Bank shall fund such amount as a an Alternate Base Rate Advance for the same period of time, and such amount shall be treated in all respects as a an Alternate Base Rate Advance. Any Lender Bank whose obligation to make LIBOR Rate Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed LIBOR Rate Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market London interbank market generally that are beyond the reasonable control of the LendersBanks, deposits in Dollars (in the applicable amounts) are not being offered to any Lender Bank in the Designated Market London interbank market for the applicable Interest LIBOR Period; or
(ii) the Requisite Lenders Banks advise the Administrative Agent that the LIBOR Rate as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders Banks for deposits in Dollars in the Designated Market London interbank market in the relevant amount for the applicable Interest LIBOR Period, or (ii) will not adequately and fairly reflect the cost to such Lenders Banks of making the applicable LIBOR Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the LendersBanks, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders Banks to make any future LIBOR Rate Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodsuspended.
(ed) Upon Except for a failure caused by any Bank's default, Borrower shall indemnify the Banks against any loss or expense that the Banks may sustain or incur (including, without limitation, any loss or expense sustained or incurred in obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any LIBOR Rate Loans) as a consequence of (i) any failure of Borrower to make any payment when due of any amount due hereunder, (ii) any failure of Borrower to borrow, continue or convert a LIBOR Rate Loan on a date specified therefor in a notice thereof, (iii) any failure to fulfill on the scheduled commencement date of any LIBOR Period hereunder the applicable conditions set forth herein as prerequisites to an Advance that is to be a LIBOR Rate Loan or to the election of a LIBOR Rate, (iv) any failure to borrow hereunder after a request for a LIBOR Rate Loan has been given, (v) any payment or prepayment of any LIBOR Advance (other than as the result permitted or mandated hereunder of a conversion required under clause (c) of this Section) LIBOR Rate Loan on a day date other than the last day in of the applicable Interest Period (whether voluntarilyrelevant LIBOR Period, involuntarily, by reason including without limitation upon acceleration following an Event of accelerationDefault, or otherwise)(vi) the occurrence of any Event of Default, including but not limited to any loss or upon the failure of Borrower expense sustained or any Co-Borrower (for a reason other than the failure of a Lender incurred or to make an Advance) be sustained or incurred in liquidating or employing deposits from third parties acquired to borrow on the date effect or in the amount specified for maintain a LIBOR Advance in any Request for Rate Loan. Without limiting the foregoing, such loss or upon expense shall conclusively be deemed to include a "Breakage Fee" (as defined below). The term "Breakage Fee" shall mean that sum equal to the greater of $200 or the financial loss incurred by the Banks resulting from prepayment or failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to borrow, calculated by the Administrative Agent pursuant to Section 3.1(f), Borrower and as the Co-Borrowers shall pay to difference between the appropriate Lender within 10 Business Days after demand a amount of interest the Banks would have earned (from like investments in the Money Markets (as hereinafter defined) as of the first day of the applicable LIBOR Period) had prepayment fee, or failure to borrow fee or failure to prepay fee, as not occurred and the case may be interest the Banks would actually earn (determined as though 100% of that Lender’s LIBOR Advance had been funded from like investments in the Designated Market), equal to the sum of:
(i) the principal amount Money Markets as of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, borrow) as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product a result of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by redeployment of funds from the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination Borrower agrees that the Breakage Fee shall not be discounted to its present value. Any voluntary prepayment of a LIBOR Rate Loan shall be in an amount equal to the remaining entire principal balance of such LIBOR Rate Loan. The term "Money Markets" refers to one or more wholesale funding markets available to Banks, including negotiable certificates of deposit, commercial paper, Eurodollar deposits, bank notes, federal funds and others. The Administrative Agent shall provide to Borrower a statement, signed by an officer of the amount Administrative Agent, explaining any such loss or expense and setting forth the computation of any prepayment feethe Breakage Fee pursuant to the preceding provisions which, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lenderbe conclusive and binding on Borrower.
Appears in 1 contract
Samples: Unsecured Credit Agreement (BioMed Realty Trust Inc)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Advance or any other amounts due under this Agreement in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances, excluding excluding, in the case of each Lender, the Administrative Agent and each Eligible Assignee, and any Affiliate or LIBOR Office thereof, (i) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) receipts or capital and franchise taxes imposed on it, by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business,” (unless it would not be doing business in such jurisdiction (or political subdivision thereof) absent the transactions contemplated hereby), (ii) any withholding taxes or other taxes based on gross income imposed by the United States of America (other than withholding taxes and taxes based on gross income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by any Governmental Agency) or (iii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve SystemSystem and any reserves under respect to liabilities or assets consisting of or including eurocurrency funds or deposits), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market London interbank eurodollar market any other condition affecting any LIBOR Advance, any of its Notes evidencing LIBOR AdvancesLoans, its obligation to make LIBOR Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Advance or in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated MarketLondon interbank eurodollar market), then, within five Business (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated MarketLondon interbank eurodollar market). A statement Borrower hereby indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within ten Banking Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, reasonable legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount rights, obligations or amounts to be paid to it hereunder shall be conclusive in the absence transactions provided for or contemplated herein, as a direct result of manifest error.
(c) If, after the Effective Date, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Market, or to determine or charge interest rates based upon LIBOR, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower and the Co-Borrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances on either (1) the last day of the Interest Period(s) applicable to such LIBOR Advances if such Lender may lawfully continue to maintain and fund such LIBOR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or Advance, such 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. Any Lender whose obligation to make LIBOR Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market for the applicable Interest Period; or
(ii) the Requisite Lenders advise the Administrative Agent that LIBOR as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market in the relevant amount for the applicable Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such period.
(e) Upon payment or prepayment of any LIBOR Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as the case may be (determined as though 100% of that Lender’s LIBOR Advance had been funded in the Designated Market), equal to the sum of:
(i) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.
Appears in 1 contract
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i1) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Advance or any other amounts due under this Agreement in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances, excluding excluding, in the case of each Lender, the Administrative Agent and each Eligible Assignee, and any Affiliate or LIBOR Office thereof, (i) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) receipts or capital and franchise taxes imposed on it, by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “"doing business,” " (unless it would not be doing business in such jurisdiction (or political subdivision thereof) absent the transactions contemplated hereby), (ii) any withholding taxes or other taxes based on gross income imposed by the United States of America (other than withholding taxes and taxes based on gross income resulting solely from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by any Governmental Agency) or (iii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System, but excluding the Reserve Percentage taken into account in calculating the LIBOR), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii3) shall impose on any Lender or its LIBOR Lending Office or the Designated LIBOR Market any other condition affecting any LIBOR Advance, any of its Notes evidencing LIBOR AdvancesLoans, its obligation to make LIBOR Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Advance or in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances (assuming such Lender’s 's LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated LIBOR Market), then, within five Business (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated LIBOR Market). Borrower hereby indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within ten Banking Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, reasonable legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions provided for or contemplated herein, as a direct result of the existence or occurrence of any Special LIBOR Circumstance. A statement of any Lender claiming compensation under this clause (b) subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to this Section, and agrees to designate a different LIBOR Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. If any Lender claims compensation under this Section, Borrower may at any time, upon at least four Market Days' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee required by Section 3.8(d), pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances.
(cb) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated LIBOR Market, or to determine or charge interest rates based upon the LIBOR, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s 's LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances with Interest Periods corresponding to the LIBOR Loans of which such LIBOR Advances were a part on either (1) the last day of the Interest Period(s) applicable to such LIBOR Advances if such Lender may lawfully continue to maintain and fund such LIBOR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Advances to such day(s), provided that in such event the conversion shall not be subject to payment pay ment of a prepayment fee under clause (e) of this SectionSection 3.8(d). Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Closing Date, which will cause that Lender to notify the Administrative Agent under this SectionSection 3.8(b), and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or AdvanceLoan, such 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. Any Lender whose obligation to make LIBOR Advances has been suspended under this Section 3.8(b) shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed LIBOR Loan:
(i1) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated LIBOR Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated LIBOR Market for the applicable Interest Period; or
(ii2) the Requisite Lenders advise the Administrative Agent that the LIBOR as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated LIBOR Market in the relevant amount for the applicable Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above suspended. If at the time of such notice there is the basis then pending a Request for Loan that specifies a LIBOR Loan, such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect Request for Loan shall be deemed to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodspecify a Base Rate Loan.
(ed) Upon payment or prepayment of any LIBOR Advance (other than as the result of a conversion required under clause (c) of this Section) Section 3.8(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 or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance Loan in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business ten Banking Days after demand a prepayment fee, failure to borrow fee or failure to prepay borrow fee, as the case may be (determined as though 100% of that Lender’s the LIBOR Advance had been funded in the Designated LIBOR Market), ) equal to the sum of:
(i1) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaidborrowed, as the case may be, times (the number of days from and including between the date of prepayment or failure to borrow or prepayborrow, as applicable, to but excluding and the last day in the applicable Interest Period Period, divided by 360) , times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii2) all reasonable out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section 3.8(d) shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.
Appears in 1 contract
Samples: Loan Agreement (Coast Resorts Inc)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Rate Advance or any other amounts due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income (including taxes on gross income imposed in lieu of net income, gross income minimum taxes or gross receipts, (iibranch profits taxes) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business,” and (iiiii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed failed, for any reason, to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under required by applicable LawsLaws to establish a complete exemption;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, compulsory loan, insurance charge, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market London interbank market any other condition condition, cost or expense affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR AdvancesRate Loans, its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of continuing, converting into, making or maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market)Rate Advances, then, within five Business (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Rate Advance in the Designated MarketLondon interbank market), provided, that with respect to any additional amount arising as a result of the occurrence of an event described in clause (i) above, Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder subsection shall be conclusive in the absence of manifest error.
(cb) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Rate Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated MarketLondon interbank market, or to determine or charge interest rates based upon LIBORthe LIBOR Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make LIBOR Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Rate Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances on either (1) the last day of the Interest LIBOR Period(s) applicable to such LIBOR Rate Advances if such Lender may lawfully continue to maintain and fund such LIBOR Rate Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this SectionSection 3.5(d). Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Closing Date, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth aboveabove (or those set forth in clause (d) below), to make, maintain or fund its portion of any LIBOR Loan or AdvanceRate Loan, such 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. Any Lender whose obligation to make LIBOR Rate Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed LIBOR Rate Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market London interbank market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market London interbank market for the applicable Interest LIBOR Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the LIBOR Rate as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market London interbank market in the relevant amount for the applicable Interest LIBOR Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Rate Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodsuspended.
(ed) Upon Except for a failure caused by any Lender’s default, Borrower shall indemnify the Lenders against any loss or expense that the Lenders may sustain or incur (including, without limitation, any loss or expense sustained or incurred in obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any LIBOR Rate Loans) as a consequence of (i) any failure of Borrower to make any payment when due of any amount due hereunder, (ii) any failure of Borrower to borrow, continue or convert, to the extent applicable, a LIBOR Rate Loan on a date specified therefor in a notice thereof, (iii) any failure to fulfill on the scheduled commencement date of any LIBOR Period hereunder the applicable conditions set forth herein as prerequisites to an Advance that is to be a LIBOR Rate Loan, (iv) any failure to borrow hereunder after a request for a LIBOR Rate Loan has been given, (v) any payment or prepayment of any LIBOR Advance (other than as the result permitted or mandated hereunder of a conversion required under clause (c) of this Section) LIBOR Rate Loan on a day date other than the last day in of the applicable Interest Period (whether voluntarilyrelevant LIBOR Period, involuntarily, by reason including without limitation upon acceleration following an Event of accelerationDefault, or otherwise)(vi) the occurrence of any Event of Default, including but not limited to any loss or upon the failure of Borrower expense sustained or any Co-Borrower (for a reason other than the failure of a Lender incurred or to make an Advance) be sustained or incurred in liquidating or employing deposits from third parties acquired to borrow on the date effect or in the amount specified for maintain a LIBOR Advance in any Request for Rate Loan. Without limiting the foregoing, such loss or upon expense shall conclusively be deemed to include a “Breakage Fee” (as defined below). The term “Breakage Fee” shall mean that sum equal to the greater of $200 or the financial loss incurred by the Lenders resulting from prepayment or failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to borrow, calculated by the Administrative Agent pursuant to Section 3.1(f), Borrower and as the Co-Borrowers shall pay to difference between the appropriate Lender within 10 Business Days after demand a amount of interest the Lenders would have earned (from like investments in the Money Markets (as hereinafter defined) as of the first day of the applicable LIBOR Period) had prepayment fee, or failure to borrow fee or failure to prepay fee, as not occurred and the case may be interest the Lenders would actually earn (determined as though 100% of that Lender’s LIBOR Advance had been funded from like investments in the Designated Market), equal to the sum of:
(i) the principal amount Money Markets as of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, borrow) as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product a result of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by redeployment of funds from the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination Borrower agrees that the Breakage Fee shall not be discounted to its present value. Any voluntary prepayment of a LIBOR Rate Loan shall be in an amount to be agreed upon between Borrower and Administrative Agent, with respect to any LIBOR Rate Loan. The term “Money Markets” refers to one or more wholesale funding markets available to Lenders, including negotiable certificates of deposit, commercial paper, Eurodollar deposits, bank notes, federal funds and others. The Administrative Agent shall provide to Borrower a statement, signed by an officer of the amount Administrative Agent, explaining any such loss or expense and setting forth the computation of any prepayment feethe Breakage Fee pursuant to the preceding provisions which, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lenderbe conclusive and binding on Borrower.
Appears in 1 contract
Samples: Unsecured Term Credit Agreement (BioMed Realty L P)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Government Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) the Eurodollar Obligations of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR 's Eurodollar Lending Office had funded 100% of its LIBOR Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements. The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its LIBOR Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Advance or any other amounts due under this Agreement in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, receipts and franchise taxes imposed on it (including
(ii) franchise any withholding taxes or other taxes based on gross income imposed by the United States of America (Aother than withholding taxes and taxes based on gross income resulting from or attributable to any change after the Closing Date in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by any Government Agency) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business,” and (iii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.2112.21, to the extent such forms are then available under required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market any other condition affecting any LIBOR Advance, any of its Notes evidencing LIBOR Advances, its obligation to make LIBOR Advances or this Agreement, or shall otherwise affect any of the same;
(iv) and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Advance or in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market), then, within five Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market). A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the Effective Date, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Market, or to determine or charge interest rates based upon LIBOR, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower and the Co-Borrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances on either (1) the last day of the Interest Period(s) applicable to such LIBOR Advances if such Lender may lawfully continue to maintain and fund such LIBOR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or Advance, such 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. Any Lender whose obligation to make LIBOR Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market for the applicable Interest Period; or
(ii) the Requisite Lenders advise the Administrative Agent that LIBOR as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market in the relevant amount for the applicable Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such period.
(e) Upon payment or prepayment of any LIBOR Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as the case may be (determined as though 100% of that Lender’s LIBOR Advance had been funded in the Designated Market), equal to the sum of:
(i) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.
Appears in 1 contract
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) the Eurodollar Obligations of that LenderLender (other than amounts that are reflected in the calculation of LIBOR), Borrower or the relevant Co-Borrower shall pay that Lender within five Business (5) Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirementsrequirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is six months preceding the date of such demand or is attributable to periods prior to the date which is six months preceding the date of such demand). The Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Advances or its obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Rate Advance or any other amounts due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Advances or its obligation to make LIBOR Rate Advances, excluding (iA) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (A1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B2) any jurisdiction (or political subdivision thereof) in which it is “doing business,” and (iiiB) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Eurodollar Market any other condition affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Advances, its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Advances or its obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Advances or its obligation to make LIBOR Rate Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance Rate Advances in the Designated Eurodollar Market), then, within five Business (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is six months preceding the date of such demand or is attributable to periods prior to the date which is six months preceding the date of such demand. A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder subsection shall be conclusive in the absence of manifest error.
(c) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any Borrowing consisting of LIBOR Advance Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon LIBOR, and such Lender shall so notify the Administrative AgentLIBOR Rate, then such Lender’s obligation to make LIBOR Rate Advances shall be suspended for the duration of such illegality or impossibility and replaced with an obligation to make Alternate Base Rate Advances and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances on either (1) the last day of the Interest Period(s) applicable to such LIBOR Advances if such Lender may lawfully continue to maintain and fund such LIBOR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or Advance, such 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. Any Lender whose obligation to make LIBOR Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market for the applicable Interest Period; or
(ii) the Requisite Lenders advise the Administrative Agent that LIBOR as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market in the relevant amount for the applicable Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such period.
(e) Upon payment or prepayment of any LIBOR Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as the case may be (determined as though 100% of that Lender’s LIBOR Advance had been funded in the Designated Market), equal to the sum of:
(i) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.such
Appears in 1 contract
Samples: Credit Agreement (Keystone Automotive Industries Inc)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Rate Advance or any other amounts due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income (including taxes on gross income imposed in lieu of net income, gross income minimum taxes or gross receipts, (iibranch profits taxes and franchise taxes) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business,” and ”, (iiiii) any withholding taxes or other taxes based on gross income imposed by the United States of America on the day such Lender becomes a Lender hereunder or for any period with respect to which it has failed failed, for any reason, to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available required by applicable Laws to establish a complete exemption, and (iii) any withholding taxes imposed under applicable LawsFATCA;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital compulsory loan, insurance charge, capital, liquidity or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market London interbank market any other condition affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR AdvancesRate Loans, its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market)Rate Advances, then, within five Business (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Rate Advance in the Designated MarketLondon interbank market), provided, that with respect to any additional amount arising as a result of the occurrence of an event described in clause (i) above, Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand (except that, if the Special LIBOR Circumstance giving rise to such increased costs or reductions is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof). A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder subsection shall be conclusive in the absence of manifest error.
(cb) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Rate Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated MarketLondon interbank market, or to determine or charge interest rates based upon LIBORthe LIBOR Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make LIBOR Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Rate Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances on either (1) the last day of the Interest LIBOR Period(s) applicable to such LIBOR Rate Advances if such Lender may lawfully continue to maintain and fund such LIBOR Rate Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this SectionSection 3.5(d). Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Closing Date, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth aboveabove (or those set forth in clause (d) below), to make, maintain or fund its portion of any LIBOR Loan or AdvanceRate Loan, such 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. Any Lender whose obligation to make LIBOR Rate Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed LIBOR Rate Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market London interbank market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market London interbank market for the applicable Interest LIBOR Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the LIBOR Rate as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market London interbank market in the relevant amount for the applicable Interest LIBOR Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Rate Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodsuspended.
(ed) Upon Except for a failure caused by any Lender’s default, Borrower shall indemnify the Lenders against any loss or expense that the Lenders may sustain or incur (including, without limitation, any loss or expense sustained or incurred in obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any Competitive LIBOR Margin Competitive Bid Loans or LIBOR Rate Loans) as a consequence of (i) any failure of Borrower to make any payment when due of any amount due hereunder, (ii) any failure of Borrower to borrow, continue or convert, to the extent applicable, a Competitive LIBOR Margin Competitive Bid Loan or a LIBOR Rate Loan on a date specified therefor in a notice thereof, (iii) any failure to fulfill on the scheduled commencement date of any Interest Period hereunder the applicable conditions set forth herein as prerequisites to an Advance that is to be a LIBOR Rate Loan or a Competitive LIBOR Margin Competitive Bid Loan or to the election of an Absolute Rate, a Competitive LIBOR Margin or a LIBOR Rate, (iv) any failure to borrow hereunder after a request for a LIBOR Rate Loan has been given, (v) any payment or prepayment of any LIBOR Advance (other than as the result permitted or mandated hereunder of a conversion required under clause (c) of this Section) LIBOR Rate Loan or a Competitive Bid Loan on a day date other than the last day of the relevant Interest Period, including without limitation upon acceleration following an Event of Default, unless otherwise provided in the related Competitive Bid Quote Request and related Competitive Bid Quote, in the case of a Competitive Bid Loan, or (vi) the occurrence of any Event of Default, including but not limited to any loss or expense sustained or incurred or to be sustained or incurred in liquidating or employing deposits from third parties acquired to effect or maintain a LIBOR Rate Loan or a Competitive Bid Loan. Without limiting the foregoing, such loss or expense shall conclusively be deemed to include a “Breakage Fee” (as defined below). The term “Breakage Fee” shall mean that sum equal to the greater of $200 or the financial loss incurred by the Lenders resulting from prepayment or failure to borrow, calculated by the Administrative Agent as the difference between the amount of interest the Lenders would have earned (from like investments in the Money Markets (as hereinafter defined) as of the first day of the applicable Interest Period (whether voluntarily, involuntarily, by reason of acceleration, Period) had prepayment or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as not occurred and the case may be interest the Lenders would actually earn (determined as though 100% of that Lender’s LIBOR Advance had been funded from like investments in the Designated Market), equal to the sum of:
(i) the principal amount Money Markets as of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, borrow) as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product a result of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by redeployment of funds from the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination Borrower agrees that the Breakage Fee shall not be discounted to its present value. Any voluntary prepayment of a LIBOR Rate Loan or a Competitive Bid Loan shall be in an amount to be agreed upon between Borrower and Administrative Agent, with respect to any LIBOR Rate Loan, or in such amount as was proposed by Borrower in the applicable Competitive Bid Quote Request pursuant to Section 2.4(b)(v) and agreed to by the applicable Competitive Bid Lender in its related Competitive Bid Quote, with respect to any Competitive Bid Loan. The term “Money Markets” refers to one or more wholesale funding markets available to Lenders, including negotiable certificates of deposit, commercial paper, Eurodollar deposits, bank notes, federal funds and others. The Administrative Agent shall provide to Borrower a statement, signed by an officer of the amount Administrative Agent, explaining any such loss or expense and setting forth the computation of any prepayment feethe Breakage Fee pursuant to the preceding provisions which, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lenderbe conclusive and binding on Borrower.
Appears in 1 contract
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including INCLUDING any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) the Eurodollar Obligations of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR 's Eurodollar Lending Office had funded 100% of its LIBOR Advance in the Designated Eurodollar Market) in respect of the imposition of such reserve requirements. The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its LIBOR Eurodollar Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Advance or any other amounts due under this Agreement in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances, excluding EXCLUDING (i) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Eurodollar Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “"doing business,” " and (iii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.2113.23, to the extent such forms are then available under required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including INCLUDING any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Eurodollar Lending Office); or
(iii) shall impose on any Lender or its LIBOR Eurodollar Lending Office or the Designated Eurodollar Market any other condition affecting any LIBOR Advance, any of its Notes evidencing LIBOR Advances, its obligation to make LIBOR Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Eurodollar Lending Office of making or maintaining any LIBOR Advance or in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Eurodollar Lending Office with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR 's Eurodollar Lending Office had funded 100% of its LIBOR Advance in the Designated Eurodollar Market), then, within five Business Days after demand by such Lender (with a copy to the Administrative Agent), the Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR 's Eurodollar Lending Office had funded 100% of its LIBOR Advance in the Designated Eurodollar Market). A statement of any Lender claiming compensation under this clause (b) subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Eurodollar Lending Office to make, maintain or fund its portion of any LIBOR Advance or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon LIBOR, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s 's LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances on either (1) the last day of the Interest LIBOR Period(s) applicable to such LIBOR Advances if such Lender may lawfully continue to maintain and fund such LIBOR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Advances to such day(s), provided PROVIDED that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify the Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the date hereof, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Eurodollar Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or Advance, such 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. Any Lender whose obligation to make LIBOR Advances has been suspended under this Section shall promptly notify the Administrative Agent and the Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Eurodollar Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Eurodollar Market for the applicable Interest LIBOR Period; or
(ii) the Requisite Lenders advise the Administrative Agent that LIBOR 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 Interest LIBOR Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodsuspended.
(e) Upon payment or prepayment of any LIBOR Advance (other than OTHER THAN as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Interest LIBOR Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-the Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for Loan, or upon the failure of Borrower or any Co-the Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), the Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 ten Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as the case may be (determined as though 100% of that Lender’s 's LIBOR Advance had been funded in the Designated Eurodollar Market), equal to the sum ofSUM OF:
(i) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (TIMES [the number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Interest Period divided by LIBOR Period], DIVIDED BY 360) times , TIMES the applicable Interest Differential (provided PROVIDED that the product of the foregoing formula must be a positive number); plusPLUS
(ii) all out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify the Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Datedate hereof, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Eurodollar Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-BorrowersBorrower, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) , the Borrower and the Co-Borrowers may at any time, upon at least four (4) LIBOR Business Days’ ' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus PLUS any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.
Appears in 1 contract
Samples: Loan Agreement (Mississippi Band of Choctaw Indians Dba Choctaw RSRT DVLP E)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Advance or any other amounts due under this Agreement in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances, excluding excluding, in the case of each Lender, the Administrative Agent and each Eligible Assignee, and any Affiliate or LIBOR Office thereof, (i) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) receipts or capital and franchise taxes imposed on it, by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “"doing business,” " (unless it would not be doing business in such jurisdiction (or political subdivision thereof) absent the transactions contemplated hereby), (ii) any withholding taxes or other taxes based on gross income imposed by the United States of America (other than withholding taxes and taxes based on gross income resulting solely from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by any Governmental Agency) or (iii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.2111.20, to the extent such forms are then available under required by applicable Laws;
(iib) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System, but excluding the Reserve Percentage taken into account in calculating the LIBOR), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market any other condition affecting any LIBOR Advance, any of its Notes evidencing LIBOR Advances, its obligation to make LIBOR Advances or this Agreement, or shall otherwise affect any of the same;
(iv) and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Advance or in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market), then, within five Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market). A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the Effective Date, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Market, or to determine or charge interest rates based upon LIBOR, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower and the Co-Borrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances on either (1) the last day of the Interest Period(s) applicable to such LIBOR Advances if such Lender may lawfully continue to maintain and fund such LIBOR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or Advance, such 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. Any Lender whose obligation to make LIBOR Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market for the applicable Interest Period; or
(ii) the Requisite Lenders advise the Administrative Agent that LIBOR as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market in the relevant amount for the applicable Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such period.
(e) Upon payment or prepayment of any LIBOR Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as the case may be (determined as though 100% of that Lender’s LIBOR Advance had been funded in the Designated Market), equal to the sum of:
(i) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.
Appears in 1 contract
Samples: Credit Agreement (Ducommun Inc /De/)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Rate Advance or any other amounts due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income (including taxes on gross income imposed in lieu of net income, gross income minimum taxes or gross receipts, (iibranch profits taxes) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business,” and (iiiii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed failed, for any reason, to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under required by applicable LawsLaws to establish a complete exemption;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market London interbank market any other condition affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR AdvancesRate Loans, its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Advances Rate Loans or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market)Rate Advances, then, within five Business (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Rate Advance in the Designated MarketLondon interbank market), provided, that with respect to any additional amount arising as a result of the occurrence of an event described in clause (i) above, Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety (90) days preceding the date of such demand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand. A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder subsection shall be conclusive in the absence of manifest error.
(cb) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Rate Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated MarketLondon interbank market, or to determine or charge interest rates based upon LIBORthe LIBOR Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make LIBOR Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Rate Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances on either (1) the last day of the Interest LIBOR Period(s) applicable to such LIBOR Rate Advances if such Lender may lawfully continue to maintain and fund such LIBOR Rate Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this SectionSection 3.5(d). Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Closing Date, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth aboveabove (or those set forth in clause (d) below), to make, maintain or fund its portion of any LIBOR Loan or AdvanceRate Loan, such 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. Any Lender whose obligation to make LIBOR Rate Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension.
(dc) If, with respect to any proposed LIBOR Rate Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market London interbank market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market London interbank market for the applicable Interest LIBOR Period; or
(ii) the Requisite Lenders advise the Administrative Agent that the LIBOR Rate as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market London interbank market in the relevant amount for the applicable Interest LIBOR Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Rate Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Rate Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such periodsuspended.
(ed) Upon Except for a failure caused by any Lender’s default, Borrower shall indemnify the Lenders against any loss or expense that the Lenders may sustain or incur (including, without limitation, any loss or expense sustained or incurred in obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any Competitive LIBOR Margin Competitive Bid Loans or LIBOR Rate Loans) as a consequence of (i) any failure of Borrower to make any payment when due of any amount due hereunder, (ii) any failure of Borrower to borrow, continue or convert, to the extent applicable, a Competitive LIBOR Margin Competitive Bid Loan or a LIBOR Rate Loan on a date specified therefor in a notice thereof, (iii) any failure to fulfill on the scheduled commencement date of any Interest Period hereunder the applicable conditions set forth herein as prerequisites to an Advance that is to be a LIBOR Rate Loan or a Competitive LIBOR Margin Competitive Bid Loan or to the election of an Absolute Rate, a Competitive LIBOR Margin or a LIBOR Rate, (iv) any failure to borrow hereunder after a request for a LIBOR Rate Loan has been given, (v) any payment or prepayment of any LIBOR Advance (other than as the result permitted or mandated hereunder of a conversion required under clause (c) of this Section) LIBOR Rate Loan or a Competitive Bid Loan on a day date other than the last day of the relevant Interest Period, including without limitation upon acceleration following an Event of Default, unless otherwise provided in the related Competitive Bid Quote Request and related Competitive Bid Quote, in the case of a Competitive Bid Loan, or (vi) the occurrence of any Event of Default, including but not limited to any loss or expense sustained or incurred or to be sustained or incurred in liquidating or employing deposits from third parties acquired to effect or maintain a LIBOR Rate Loan or a Competitive Bid Loan. Without limiting the foregoing, such loss or expense shall conclusively be deemed to include a “Breakage Fee” (as defined below). The term “Breakage Fee” shall mean that sum equal to the greater of $200 or the financial loss incurred by the Lenders resulting from prepayment or failure to borrow, calculated by the Administrative Agent as the difference between the amount of interest the Lenders would have earned (from like investments in the Money Markets (as hereinafter defined) as of the first day of the applicable Interest Period (whether voluntarily, involuntarily, by reason of acceleration, Period) had prepayment or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as not occurred and the case may be interest the Lenders would actually earn (determined as though 100% of that Lender’s LIBOR Advance had been funded from like investments in the Designated Market), equal to the sum of:
(i) the principal amount Money Markets as of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, borrow) as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product a result of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by redeployment of funds from the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination Borrower agrees that the Breakage Fee shall not be discounted to its present value. Any voluntary prepayment of a LIBOR Rate Loan or a Competitive Bid Loan shall be in an amount to be agreed upon between Borrower and Administrative Agent, with respect to any LIBOR Rate Loan, or in such amount as was proposed by Borrower in the applicable Competitive Bid Quote Request pursuant to Section 2.4(b)(v) and agreed to by the applicable Competitive Bid Lender in its related Competitive Bid Quote, with respect to any Competitive Bid Loan. The term “Money Markets” refers to one or more wholesale funding markets available to Lenders, including negotiable certificates of deposit, commercial paper, Eurodollar deposits, bank notes, federal funds and others. The Administrative Agent shall provide to Borrower a statement, signed by an officer of the amount Administrative Agent, explaining any such loss or expense and setting forth the computation of any prepayment feethe Breakage Fee pursuant to the preceding provisions which, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lenderbe conclusive and binding on Borrower.
Appears in 1 contract
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “"eurocurrency liabilities”") of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Closing Date, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Advance or any other amounts due under this Agreement in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “"doing business,” " and (iii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Co-Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Closing Date (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market any other condition affecting any LIBOR Advance, any of its Notes evidencing LIBOR Advances, its obligation to make LIBOR Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; W02-WEST:LAR\4000119853.8 and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Advance or in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances (assuming such Lender’s 's LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market), then, within five Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market). A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the Effective Closing Date, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Market, or to determine or charge interest rates based upon LIBOR, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower and the Co-Borrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s 's LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances on either (1) the last day of the Interest Period(s) applicable to such LIBOR Advances if such Lender may lawfully continue to maintain and fund such LIBOR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Closing Date of which it has actual knowledge, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or Advance, such 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. Any Lender whose obligation to make LIBOR Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market for the applicable Interest Period; oror W02-WEST:LAR\4000119853.8
(ii) the Requisite Lenders advise the Administrative Agent that LIBOR as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market in the relevant amount for the applicable Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Co-Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such period.
(e) Upon payment or prepayment of any LIBOR Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for LoanLoan or Competitive Bid Request, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as the case may be (determined as though 100% of that Lender’s 's LIBOR Advance had been funded in the Designated Market), equal to the sum of:
(i) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Closing Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.. W02-WEST:LAR\4000119853.8
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ ' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.
Appears in 1 contract
Samples: Loan Agreement (MGM Mirage)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Advance or any other amounts due under this Agreement in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business,” and (iii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market any other condition affecting any LIBOR Advance, any of its Notes evidencing LIBOR Advances, its obligation to make LIBOR Advances or this Agreement, or shall otherwise affect any of the same;
(iv) and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Advance or in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market), then, within five Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market). A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the Effective Date, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Rate Loan denominated in Dollars, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated MarketLondon interbank market, or to determine or charge interest rates based upon LIBORthe LIBOR Rate, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make LIBOR Rate Advances denominated in Dollars shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR AdvancesRate Advances denominated in Dollars, together with accrued interest thereon, automatically shall be converted to Base Rate Advances (with interest payable at the Base Rate) on either (1) the last day of the Interest LIBOR Period(s) applicable to such LIBOR Rate Advances denominated in Dollars if such Lender may lawfully continue to maintain and fund such LIBOR Rate Advances denominated in Dollars to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Rate Advances denominated in Dollars to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this SectionSection 3.5(d). Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, occurring after the Closing Date, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth aboveabove (or those set forth in clause (d) below), to make, maintain or fund its portion of any LIBOR Rate Loan or Advancedenominated in Dollars, such Lender shall fund such amount as a Base Rate Advance denominated in Dollars for the same period of time, and such amount shall be treated in all respects as a Base Rate Advance. Any Lender whose obligation to make LIBOR Rate Advances denominated in Dollars has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar LIBOR Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market for the applicable Interest Period; or
(ii) the Requisite Lenders advise the Administrative Agent that LIBOR as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market in the relevant amount for the applicable Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such period.
(e) Upon payment or prepayment of any LIBOR Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as the case may be (determined as though 100% of that Lender’s LIBOR Advance had been funded in the Designated Market), equal to the sum of:
(i) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.
Appears in 1 contract
Samples: Unsecured Term Credit Agreement (BioMed Realty L P)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i1) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Advance or any other amounts due under this Agreement in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances, excluding EXCLUDING, in the case of each Lender, the Administrative Agent and each Eligible Assignee, and any Affiliate or LIBOR Office thereof, (i) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) receipts or capital and franchise taxes imposed on it, by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “"doing business,” " (unless it would not be doing business in such jurisdiction (or political subdivision thereof) absent the transactions contemplated hereby), (ii) any withholding taxes or other taxes based on gross income imposed by the United States of America (other than withholding taxes and taxes based on gross income resulting from or attributable to any change in any law, rule or regulation or any change in the interpretation or administration of any law, rule or regulation by any Governmental Agency) or (iii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under required by applicable Laws;
(ii2) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including INCLUDING, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System, BUT EXCLUDING the Reserve Percentage taken into account in calculating the LIBOR), special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii3) shall impose on any Lender or its LIBOR Lending Office or the Designated LIBOR Market any other condition affecting any LIBOR Advance, any of its Notes evidencing LIBOR AdvancesLoans, its obligation to make LIBOR Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Advance or in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances Loans or its obligation to make LIBOR Advances (assuming such Lender’s 's LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated LIBOR Market), then, within five Business (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated LIBOR Market). Borrower hereby indemnifies each Lender against, and agrees to hold each Lender harmless from and reimburse such Lender within ten Banking Days after demand for (without duplication) all costs, expenses, claims, penalties, liabilities, losses, reasonable legal fees and damages incurred or sustained by each Lender in connection with this Agreement, or any of the rights, obligations or transactions provided for or contemplated herein, as a direct result of the existence or occurrence of any Special LIBOR Circumstance. A statement of any Lender claiming compensation under this clause (b) subsection and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. Each Lender agrees to endeavor promptly to notify Borrower of any event of which it has actual knowledge, occurring after the Closing Date, which will entitle such Lender to compensation pursuant to this Section, and agrees to designate a different LIBOR Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. If any Lender claims compensation under this Section, Borrower may at any time, upon at least four Market Days' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee required by Section 3.8(d), pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances.
(cb) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance Loan, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated LIBOR Market, or to determine or charge interest rates based upon the LIBOR, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s 's LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances with Interest Periods corresponding to the LIBOR Loans of which such LIBOR Advances were a part on either (1) the last day of the Interest Period(s) applicable to such LIBOR Advances if such Lender may lawfully continue to maintain and fund such LIBOR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or Advance, such 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. Any Lender whose obligation to make LIBOR Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market for the applicable Interest Period; or
(ii) the Requisite Lenders advise the Administrative Agent that LIBOR as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market in the relevant amount for the applicable Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such period.
(e) Upon payment or prepayment of any LIBOR Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as the case may be (determined as though 100% of that Lender’s LIBOR Advance had been funded in the Designated Market), equal to the sum of:
(i) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.3.8
Appears in 1 contract
Samples: Loan Agreement (Hard Rock Hotel Inc)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Restatement Effective Date, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Advance or any other amounts due under this Agreement in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business,” and (iii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Restatement Effective Date (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market any other condition affecting any LIBOR Advance, any of its Notes evidencing LIBOR Advances, its obligation to make LIBOR Advances or this Agreement, or shall otherwise affect any of the same;
(iv) and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Advance or in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market), then, within five Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market). A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the Restatement Effective Date, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Market, or to determine or charge interest rates based upon LIBOR, and such Lender shall so notify the Administrative Agent, then such Lender’s obligation to make LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower and the Co-Borrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances on either (1) the last day of the Interest Period(s) applicable to such LIBOR Advances if such Lender may lawfully continue to maintain and fund such LIBOR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Restatement Effective Date of which it has actual knowledge, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or Advance, such 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. Any Lender whose obligation to make LIBOR Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market for the applicable Interest Period; or
(ii) the Requisite Lenders advise the Administrative Agent that LIBOR as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market in the relevant amount for the applicable Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such period.
(e) Upon payment or prepayment of any LIBOR Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as the case may be (determined as though 100% of that Lender’s LIBOR Advance had been funded in the Designated Market), equal to the sum of:
(i) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Restatement Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.
Appears in 1 contract
Samples: Loan Agreement (MGM Mirage)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “"eurocurrency liabilities”") of that Lender, Borrower or the relevant Co-Co- Borrower shall pay that Lender within five Business Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s 's LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market) in respect of the imposition of such reserve requirements. The Lender’s 's determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Advance or any other amounts due under this Agreement in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances, excluding (i) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “"doing business,” " and (iii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Co-Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Market any other condition affecting any LIBOR Advance, any of its Notes evidencing LIBOR Advances, its obligation to make LIBOR Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Advance or in respect of any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Advance, any of its Notes evidencing LIBOR Advances or its obligation to make LIBOR Advances (assuming such Lender’s 's LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market), then, within five Business Days after demand by such Lender (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s 's LIBOR Lending Office had funded 100% of its LIBOR Advance in the Designated Market). A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any LIBOR Advance or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Market, or to determine or charge interest rates based upon LIBOR, and such Lender shall so notify the Administrative Agent, then such Lender’s 's obligation to make LIBOR Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower and the Co-Borrowers. Upon receipt of such notice, the outstanding principal amount of such Lender’s 's LIBOR Advances, together with accrued interest thereon, automatically shall be converted to Base Rate Advances on either (1) the last day of the Interest Period(s) applicable to such LIBOR Advances if such Lender may lawfully continue to maintain and fund such LIBOR Advances to such day(s) or (2) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date date hereof of which it has actual knowledge, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or Advance, such 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. Any Lender whose obligation to make LIBOR Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market for the applicable Interest Period; or
(ii) the Requisite Lenders advise the Administrative Agent that LIBOR as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market in the relevant amount for the applicable Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Co-Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR LIB OR Margin with respect to all LIBOR LIB OR Loans made during such period.
(e) Upon payment or prepayment of any LIBOR Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for LoanLoan or Competitive Bid Request, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as the case may be (determined as though 100% of that Lender’s 's LIBOR Advance had been funded in the Designated Market), equal to the sum of:
(i) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s 's determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Co- Borrowers of any event of which it has actual knowledge, occurring after the Effective Datedate hereof, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ ' prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR LIB OR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.2411.26; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.
Appears in 1 contract
Samples: Loan Agreement (MGM Mirage)
LIBOR Costs and Related Matters. (a) In the event that any Governmental Agency imposes on any Lender any reserve or comparable requirement (including any emergency, supplemental or other reserve, but not including the Reserve Requirement) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “eurocurrency liabilities”) the Eurodollar Obligations of that Lender, Borrower or the relevant Co-Borrower shall pay that Lender within five Business (5) Banking Days after demand all amounts necessary to compensate such Lender (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance Rate Advances in the Designated Eurodollar Market) in respect of the imposition of such reserve requirementsrequirements (provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 90 days preceding the date of such demand or is attributable to periods prior to the date which is 90 days preceding the date of such demand). The Any Lender’s determination of such amount shall be conclusive in the absence of manifest error.
(b) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance:
(i) shall subject any Lender or its LIBOR Lending Office to any tax, duty or other charge or cost with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Advances or its obligation to make LIBOR Rate Advances, or shall change the basis of taxation of payments to any Lender attributable to the principal of or interest on any LIBOR Rate Advance or any other amounts due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Advances or its obligation to make LIBOR Rate Advances, excluding (iA) taxes imposed on or measured in whole or in part by its overall net income, gross income or gross receipts, (ii) franchise taxes imposed by (A1) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B2) any jurisdiction (or political subdivision thereof) in which it is “doing business,” and (iiiB) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower or the relevant Co- Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then available under applicable Laws;
(ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the Effective Date date hereof (including any reserve imposed by the Board of Governors of the Federal Reserve System, other than the Reserve Requirement, special deposit, capital or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Lender or its LIBOR Lending Office); or
(iii) shall impose on any Lender or its LIBOR Lending Office or the Designated Eurodollar Market any other condition affecting any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Advances, its obligation to make LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the same;
(iv) ; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Advances or its obligation to make LIBOR Rate Advances or reduces the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Advances or its obligation to make LIBOR Rate Advances (assuming such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance Rate Advances in the Designated Eurodollar Market), then, such Lender shall use its commercially reasonable efforts to notify Borrower of the applicability of such additional cost on a going-forward basis (provided that failure of any Lender to so notify Borrower shall not affect any obligations of Borrower hereunder), and thereafter, within five Business (5) Banking Days after demand by such Lender Lender, in reasonable detail with respect to such additional cost (with a copy to the Administrative Agent), Borrower and the Co-Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Advance Rate Advances in the Designated Eurodollar Market); provided that Borrower shall not be obligated to pay any such amount which arose prior to the date which is 90 days preceding the date of such demand or is attributable to periods prior to the date which is 90 days preceding the date of such demand. A statement of any Lender claiming compensation under this clause (b) and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder subsection shall be conclusive in the absence of manifest error.
(c) If, after the Effective Datedate hereof, the existence or occurrence of any Special Eurodollar LIBOR Circumstance shall, in the good faith opinion of any Lender, make it unlawful or impossible for such Lender or its LIBOR Lending Office to make, maintain or fund its portion of any Borrowing consisting of LIBOR Advance Rate Advances, or materially restrict the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the Designated Eurodollar Market, or to determine or charge interest rates based upon LIBOR, and such Lender shall so notify the Administrative AgentLIBOR Rate, then such Lender’s obligation to make LIBOR Rate Advances shall be suspended for the duration of such illegality or impossibility and the Administrative Agent forthwith shall give notice thereof to the other Lenders, Borrower Lenders and the Co-BorrowersBorrower. Upon receipt of such notice, the outstanding principal amount of such Lender’s affected LIBOR Rate Advances, together with accrued interest thereon, automatically shall be converted to Alternate Base Rate Advances on either (1i) the last day of the Interest LIBOR Period(s) applicable to such LIBOR Rate Advances if such Lender may lawfully continue to maintain and fund such LIBOR Rate Advances to such day(s) or (2ii) immediately if such Lender may not lawfully continue to fund and maintain such LIBOR Rate Advances to such day(s), provided that in such event the conversion shall not be subject to payment of a prepayment fee under clause (e) of this Section. Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event occurring after the Effective Date of which it has actual knowledge, which will cause that Lender to notify the Administrative Agent under this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. In the event that any Lender is unable, for the reasons set forth above, to make, maintain or fund its portion of any LIBOR Loan or Advance, such 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. Any Lender whose obligation to make LIBOR Advances has been suspended under this Section shall promptly notify the Administrative Agent and Borrower of the cessation of the Special Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market generally that are beyond the reasonable control of the Lenders, deposits in Dollars (in the applicable amounts) are not being offered to any Lender in the Designated Market for the applicable Interest Period; or
(ii) the Requisite Lenders advise the Administrative Agent that LIBOR as determined by the Administrative Agent (i) does not represent the effective pricing to such Lenders for deposits in Dollars in the Designated Market in the relevant amount for the applicable Interest Period, or (ii) will not adequately and fairly reflect the cost to such Lenders of making the applicable LIBOR Advances; then the Administrative Agent forthwith shall give notice thereof to Borrower or the relevant Co- Borrower and the Lenders, whereupon until the Administrative Agent notifies Borrower or the relevant Co-Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make any future LIBOR Advances shall be suspended unless (but only if clause (2) above is the basis for such suspension) Borrower and each Co-Borrower notify the Administrative Agent in writing that they elect to pay the Enhanced LIBOR Margin with respect to all LIBOR Loans made during such period.
(e) Upon payment or prepayment of any LIBOR Advance (other than as the result of a conversion required under clause (c) of this Section) on a day other than the last day in the applicable Interest Period (whether voluntarily, involuntarily, by reason of acceleration, or otherwise), or upon the failure of Borrower or any Co-Borrower (for a reason other than the failure of a Lender to make an Advance) to borrow on the date or in the amount specified for a LIBOR Advance in any Request for Loan, or upon the failure of Borrower or any Co-Borrower to prepay a LIBOR Loan or Advance on the date specified in a notice of prepayment delivered to the Administrative Agent pursuant to Section 3.1(f), Borrower and the Co-Borrowers shall pay to the appropriate Lender within 10 Business Days after demand a prepayment fee, failure to borrow fee or failure to prepay fee, as the case may be (determined as though 100% of that Lender’s LIBOR Advance had been funded in the Designated Market), equal to the sum of:
(i) the principal amount of the LIBOR Advance prepaid or not borrowed or prepaid, as the case may be, times (the number of days from and including the date of prepayment or failure to borrow or prepay, as applicable, to but excluding the last day in the applicable Interest Period divided by 360) times the applicable Interest Differential (provided that the product of the foregoing formula must be a positive number); plus
(ii) all out-of-pocket expenses incurred by the Lender reasonably attributable to such payment, prepayment or failure to borrow. Each Lender’s determination of the amount of any prepayment fee, failure to borrow fee or failure to prepay fee payable under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower and the Co-Borrowers of any event of which it has actual knowledge, occurring after the Effective Date, which will entitle such Lender to compensation pursuant to clause (a) or clause (b) of this Section, and agrees to designate a different LIBOR Lending Office if such designation will avoid the need for or reduce the amount of such compensation and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Any request for compensation by a Lender under this Section shall set forth the basis upon which it has been determined that such an amount is due from Borrower and the Co-Borrowers, a calculation of the amount due, and a certification that the corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from making or continuing LIBOR Loans or Advances under this Section:
(i) Borrower and the Co-Borrowers may at any time, upon at least four Business Days’ prior notice to the Administrative Agent and such Lender and upon payment in full of the amounts provided for in this Section through the date of such payment plus any prepayment fee (subject to clause (c) of this Section) required by clause (e) of this Section, pay in full the affected LIBOR Advances of such Lender or request that such LIBOR Advances be converted to Base Rate Advances; and
(ii) In the case where Borrower and the Co-Borrowers become obligated to pay a material amount under this Section to any Lender, that Lender will be subject to removal in accordance with Section 11.24; provided that Borrower and the Co-Borrowers shall have paid such amount to that Lender and that Borrower and the Co-Borrowers, within the thirty day period following the date of such payment, shall have notified that Lender in writing of their intent to so remove the Lender.3.6
Appears in 1 contract
