Special Provisions Applicable to Libor Borrowings. (a) If, after the date of this Agreement, the adoption of any applicable Legal Requirement or any change in any applicable Legal Requirement or in the interpretation or administration thereof by any Governmental Authority or compliance by the Agent or any Lender with any request or directive (whether or not having the force of law) of any Governmental Authority shall at any time make it unlawful or impracticable for any Lender to permit the establishment of or to maintain any LIBOR Borrowing, the commitment of the Lenders to establish or maintain the Adjusted LIBO Rate affected by such adoption or change shall forthwith be canceled, the Agent or such Lender shall use reasonable efforts to give the Borrower written notice thereof within a reasonable time after discovery of such adoption or change by the Agent or such Lender, as applicable (it being agreed, however, that any failure to provide such notice to the Borrower shall not in any manner affect the rights under this Section 2.7(a) of the Agent or any Lender), and the Borrower shall forthwith, upon demand by the Agent to the Borrower, (1) convert the Adjusted LIBO Rate with respect to which such demand was made to the Alternate Base Rate; (2) pay all accrued and unpaid interest to date on the amount so converted; and (3) pay any amounts required to compensate the Agent and the Lenders for any additional cost or expense which the Agent or any Lender may incur as a result of such adoption of or change in such Legal Requirement or in the interpretation or administration thereof and any Consequential Loss which the Agent or any Lender may incur as a result of such conversion to the Alternate Base Rate. (b) If the adoption of any applicable Legal Requirement or any change in any applicable Legal Requirement or in the interpretation or administration thereof by any Governmental Authority or compliance by the Agent or any Lender with any request or directive (whether or not having the force of law) from any Governmental Authority shall at any time as a result of any portion of the principal balance of the Term Notes being maintained on the basis of the Adjusted LIBO Rate: (1) impose, modify, increase or deem applicable any reserve requirement (excluding that portion of any reserve requirement included in the calculation of the Statutory Reserves), special deposit requirement or similar requirement (including state law requirements and Regulation D) imposed, modified, increased or deemed applicable by any Governmental Authority against assets held by the Agent or any Lender, or against deposits or accounts in or for the account of the Agent or any Lender, or against loans made by the Agent or any Lender, or against any other funds, obligations or other Property owned or held by the Agent or any Lender; or (2) impose on the Agent or any Lender any other materially restrictive or limiting condition regarding any LIBOR Borrowing; and the result of any of the foregoing is to increase the cost to any Lender of agreeing to make or of making, renewing or maintaining such borrowing on the basis of the Adjusted LIBO Rate, or reduce the amount of principal or interest received by any Lender, then the Agent or such Lender shall use reasonable efforts to give the Borrower written notice thereof within a reasonable time after discovery of such adoption or change by the Agent or such Lender, as applicable (it being agreed, however, that any failure to provide such notice to the Borrower shall not in any manner affect the rights under this Section 2.7(b) of the Agent or any Lender), and, upon demand by such Lender, the Borrower shall pay to such Lender, from time to time as specified by such Lender, additional amounts which shall compensate such Lender for such increased cost or reduced amount. Such Lender will promptly notify the Borrower in writing of any event, upon becoming actually aware of it, which will entitle any Lender to additional amounts pursuant to this paragraph. Such Lender’s determination of the amount of any such increased cost, increased reserve requirement or reduced amount shall be conclusive and binding, absent manifest error, provided that the calculation thereof and reason therefore is certified and is set forth in reasonable detail in such certification by such Lender. The Borrower shall have the right, if it receives from any Lender any notice referred to in the preceding paragraph, upon three (3) Business Days’ notice to the Agent, either (i) to repay in full (but not in part) any borrowing with respect to which such notice was given, together with any accrued interest thereon, or (ii) to convert the Adjusted LIBO Rate in effect with respect to such borrowing from such Lender to the Alternate Base Rate; provided, that any such repayment or conversion shall be accompanied by payment of (x) the amount required to compensate the appropriate Lender or Lenders for the increased cost or reduced amount referred to in the preceding paragraph; (y) all accrued and unpaid interest to date on the amount so repaid or converted; and (z) any Consequential Loss which may be incurred as a result of such repayment or conversion. Additionally, if it receives from any Lender any notice referred to in the preceding paragraph, the Borrower shall also have the corresponding rights in Section 10.16(c). (c) If for any reason with respect to any Interest Period the Agent shall have in good faith determined (which determination shall be conclusive and binding upon the Borrower) that: (1) the Agent is unable through its customary general practices to determine a rate at which the Agent is offered deposits in United States dollars by prime banks in the London interbank market, in the appropriate amount for the appropriate period, or by reason of circumstances affecting the London interbank market, generally, the Agent is not being offered deposits for the applicable Interest Period and in an amount equal to the amount of the Agent’s pro-rata portion of any LIBOR Borrowing requested by the Borrower, or (2) the Adjusted LIBO Rate will not adequately and fairly reflect the cost to any Lender of making and maintaining any LIBOR Borrowing hereunder for any proposed Interest Period, then the Agent shall give the Borrower notice thereof and thereupon each outstanding LIBOR Borrowing then in effect shall be converted, without any notice to or from the Borrower, upon the termination of the Interest Period then in effect to an Alternate Base Rate Borrowing. (d) Each Credit Party, jointly and severally with all other Credit Parties, hereby agrees to indemnify the Agent and each of the Lenders against and hold each of them harmless from any Consequential Loss which it may incur or sustain as a consequence of any prepayment (mandatory or optional) or default by the Borrower in the payment of any principal amount of or interest on each Term Note or any failure by the Borrower to convert or to borrow any LIBOR Borrowing on the date specified by the Borrower. This agreement shall survive the payment of each Term Note. A certificate as to any additional amounts payable to the Agent or any Lender pursuant to this paragraph, detailing the basis therefore and submitted by the Agent or such Lender to the Borrower shall be conclusive and binding upon the Credit Parties, absent manifest error, provided the calculation thereof is set forth in reasonable detail in such notice. (e) If the Borrower requests quotes of the Adjusted LIBO Rate for different Interest Periods being considered for election by the Borrower, the Agent will use reasonable efforts to provide such quotes to the Borrower promptly. However, all such quotes provided shall be representative only and shall not be binding on the Agent or any Lender, nor shall they be determinative, directly or indirectly, of any Adjusted LIBO Rate or any component of any such rate, nor will the Borrower’s failure to receive or the Agent’s failure to provide any requested quote or quotes either (1) excuse or extend the time for performance of any obligation of the Borrower or for the exercise of any right, option or election of the Borrower or (2) impose any duty or liability on the Agent or any Lender. If the Borrower requests a list of the Business Days in any calendar month, the Agent will use reasonable efforts to provide such list promptly. However, any such list provided shall be understood to identify only those days which the Agent believes in good faith at the time such list is prepared will be the Business Days for such month. The Agent shall not have any liability for any failure to provide, delay in providing, error or mistake in or omission from, any such quote or list. (f) With respect to any Lender having a LIBOR Lending Office which differs from its Domestic Lending Office, all Term Loans advanced by such Lender’s LIBOR Lending Office shall be deemed to have been made by such Lender and the obligation of the Borrower to repay such Term Loans shall nevertheless be to such Lender and shall be deemed held by such Lender, to the extent of such portions of the Term Loan, for the account of such Lender’s LIBOR Lending Office. (g) Notwithstanding any provision of this Agreement to the contrary, each Lender shall be entitled to fund and maintain its funding of all or any part of the Term Loans hereunder in any manner it sees fit, it being understood, however, that for the purposes of this Agreement, all determinations hereunder shall be made as if such Lender had actually funded and maintained its portion of each LIBOR Borrowing during each Interest Period for the Term Loans through the purchase of deposits having a maturity corresponding to such Interest Period and bearing an interest rate equal to the LIBO Rate for such Interest Period. (h) The Borrower’s obligation to pay increased costs and Consequential Loss with regard to each LIBOR Borrowing as specified in this Section 2.7 hereof shall survive termination of this Agreement.

Appears in 3 contracts

Samples: Term Loan Agreement (Animal Health International, Inc.), Term Loan Agreement (Animal Health International, Inc.), Term Loan Agreement (Animal Health International, Inc.)

Special Provisions Applicable to Libor Borrowings. (a) If, after the date of this Agreement, the adoption of any applicable Legal Requirement or any change in any applicable Legal Requirement or in the interpretation or administration thereof by any Governmental Authority or compliance by the Agent or any Lender with any request or directive (whether or not having the force of law) of any Governmental Authority shall at any time make it unlawful or impracticable for any Lender to permit the establishment of or to maintain any LIBOR Borrowing, the commitment of the Lenders to establish or maintain the Adjusted ~~LIBO~~ LIBOR Rate affected by such adoption or change shall forthwith be canceled, the Agent or such Lender shall use reasonable efforts to give the Borrower written notice thereof within a reasonable time after discovery of such adoption or change by the Agent or such Lender, as applicable (it being agreed, however, that any failure to provide such notice to the Borrower shall not in any manner affect the rights under this Section ~~2.7(a~~2.9(a) of the Agent or any Lender), and the Borrower shall forthwith, upon demand by the Agent to the Borrower, (1) convert the Adjusted ~~LIBO~~ LIBOR Rate with respect to which such demand was made to the Alternate Base Rate; (2) pay all accrued and unpaid interest to date on the amount so converted; and (3) pay any amounts required to compensate the Agent and the Lenders for any additional cost or expense which the Agent or any Lender may incur as a result of such adoption of or change in such Legal Requirement or in the interpretation or administration thereof and any Consequential Loss which the Agent or any Lender may incur as a result of such conversion to the Alternate Base Rate. If, when the Agent so notifies the Borrower, the Borrower has given a Rate Selection Notice specifying one or more borrowings of the type with respect to which such demand was made but the selected Interest Period or Interest Periods has not yet begun, such Rate Selection Notice shall be deemed to be of no force and effect, as if never made, and the balance of the Loans specified in such Rate Selection Notice shall bear interest at the Alternate Base Rate until a different available Interest Option shall be designated in accordance herewith. (b) If the adoption of any applicable Legal Requirement or any change in any applicable Legal Requirement or in the interpretation or administration thereof by any Governmental Authority or compliance by the Agent or any Lender with any request or directive (whether or not having the force of law) from any Governmental Authority shall at any time as a result of any portion of the principal balance of the ~~Term~~ Notes being maintained on the basis of the Adjusted ~~LIBO~~ LIBOR Rate: (1) impose, modify, increase or deem applicable any reserve requirement (excluding that portion of any reserve requirement included in the calculation of the Statutory Reserves), special deposit requirement or similar requirement (including state law requirements and Regulation D) imposed, modified, increased or deemed applicable by any Governmental Authority against assets held by the Agent or any Lender, or against deposits or accounts in or for the account of the Agent or any Lender, or against loans made by the Agent or any Lender, or against any other funds, obligations or other Property owned or held by the Agent or any Lender; or (2) impose on the Agent or any Lender any other materially restrictive or limiting condition regarding any LIBOR Borrowing; and the result of any of the foregoing is to increase the cost to any Lender of agreeing to make or of making, renewing or maintaining such borrowing on the basis of the Adjusted ~~LIBO~~ LIBOR Rate, or reduce the amount of principal or interest received by any Lender, then the Agent or such Lender shall use reasonable efforts to give the Borrower written notice thereof within a reasonable time after discovery of such adoption or change by the Agent or such Lender, as applicable (it being agreed, however, that any failure to provide such notice to the Borrower shall not in any manner affect the rights under this Section ~~2.7(b~~2.9(b) of the Agent or any Lender), and, upon demand by such Lender, the Borrower shall pay to such Lender, from time to time as specified by such Lender, additional amounts which shall compensate such Lender for such increased cost or reduced amount. Such Lender will promptly notify the Borrower in writing of any event, upon becoming actually aware of it, which will entitle any Lender to additional amounts pursuant to this paragraph. Such Lender’s determination of the amount of any such increased cost, increased reserve requirement or reduced amount shall be conclusive and binding, absent manifest error, provided that the calculation thereof and reason therefore is certified and is set forth in reasonable detail in such certification by such Lender. The Borrower shall have the right, if it receives from any Lender any notice referred to in the preceding paragraph, upon three (3) Business Days’ notice to the Agent, either (i) to repay in full (but not in part) any borrowing with respect to which such notice was given, together with any accrued interest thereon, or (ii) to convert the Adjusted ~~LIBO~~ LIBOR Rate in effect with respect to such borrowing from such Lender to the Alternate Base Rate; provided, that any such repayment or conversion shall be accompanied by payment of (x) the amount required to compensate the appropriate Lender or Lenders for the increased cost or reduced amount referred to in the preceding paragraph; (y) all accrued and unpaid interest to date on the amount so repaid or converted; and (z) any Consequential Loss which may be incurred as a result of such repayment or conversion. Additionally, if it receives from any Lender any notice referred to in the preceding paragraph, the Borrower shall also have the corresponding rights in Section 10.16(c). (c) If for any reason with respect to any Interest Period the Agent shall have in good faith determined (which determination shall be conclusive and binding upon the Borrower) that: (1) the Agent is unable through its customary general practices to determine a rate at which the Agent is offered deposits in United States dollars by prime banks in the London interbank market, in the appropriate amount for the appropriate period, or by reason of circumstances affecting the London interbank market, generally, the Agent is not being offered deposits for the applicable Interest Period and in an amount equal to the amount of the Agent’s pro-rata portion of any LIBOR Borrowing requested by the Borrower, or (2) the Adjusted ~~LIBO~~ LIBOR Rate will not adequately and fairly reflect the cost to any Lender of making and maintaining any LIBOR Borrowing hereunder for any proposed Interest Period, then the Agent shall give the Borrower notice thereof and ~~thereupon~~ thereupon, (A) any Rate Selection Notice previously given by the Borrower designating an Adjusted LIBOR Rate which has not commenced as of the date of such notice from the Agent shall be deemed for all purposes hereof to be of no force and effect, as if never given, and (B) until the circumstances giving rise to such notice from the Agent no longer exist, each Rate Selection Notice requesting an Adjusted LIBOR Rate shall be deemed a request for an Alternate Base Rate Borrowing, and each outstanding LIBOR Borrowing then in effect shall be converted, without any notice to or from the Borrower, upon the termination of the Interest Period then in effect to an Alternate Base Rate Borrowing. (d) Each Credit Party, jointly and severally with all other Credit Parties, hereby agrees to indemnify the Agent and each of the Lenders against and hold each of them harmless from any Consequential Loss which it may incur or sustain as a consequence of any prepayment (mandatory or optional) or default by the Borrower in the payment of any principal amount of or interest on each ~~Term~~ Note or any failure by the Borrower to convert or to borrow any LIBOR Borrowing on the date specified by the Borrower. This agreement shall survive the payment of each ~~Term~~ Note. A certificate as to any additional amounts payable to the Agent or any Lender pursuant to this paragraph, detailing the basis therefore and submitted by the Agent or such Lender to the Borrower shall be conclusive and binding upon the Credit Parties, absent manifest error, provided the calculation thereof is set forth in reasonable detail in such notice. (e) If the Borrower requests quotes of the Adjusted ~~LIBO~~ LIBOR Rate for different Interest Periods being considered for election by the Borrower, the Agent will use reasonable efforts to provide such quotes to the Borrower promptly. However, all such quotes provided shall be representative only and shall not be binding on the Agent or any Lender, nor shall they be determinative, directly or indirectly, of any Adjusted ~~LIBO~~ LIBOR Rate or any component of any such rate, nor will the Borrower’s failure to receive or the Agent’s failure to provide any requested quote or quotes either (1) excuse or extend the time for performance of any obligation of the Borrower or for the exercise of any right, option or election of the Borrower or (2) impose any duty or liability on the Agent or any Lender. If the Borrower requests a list of the Business Days in any calendar month, the Agent will use reasonable efforts to provide such list promptly. However, any such list provided shall be understood to identify only those days which the Agent believes in good faith at the time such list is prepared will be the Business Days for such month. The Agent shall not have any liability for any failure to provide, delay in providing, error or mistake in or omission from, any such quote or list. (f) With respect to any Lender having a LIBOR Lending Office which differs from its Domestic Lending Office, all ~~Term~~ Loans advanced by such Lender’s LIBOR Lending Office shall be deemed to have been made by such Lender and the obligation of the Borrower to repay such ~~Term~~ Loans shall nevertheless be to such Lender and shall be deemed held by such Lender, to the extent of such portions of the ~~Term~~ Loan, for the account of such Lender’s LIBOR Lending Office. (g) Notwithstanding any provision of this Agreement to the contrary, each Lender shall be entitled to fund and maintain its funding of all or any part of the ~~Term~~ Loans hereunder in any manner it sees fit, it being understood, however, that for the purposes of this Agreement, all determinations hereunder shall be made as if such Lender had actually funded and maintained its portion of each LIBOR Borrowing during each Interest Period for the ~~Term~~ Loans through the purchase of deposits having a maturity corresponding to such Interest Period and bearing an interest rate equal to the ~~LIBO~~ LIBOR Rate for such Interest Period. (h) The Borrower’s obligation to pay increased costs and Consequential Loss with regard to each LIBOR Borrowing as specified in this Section ~~2.7~~ 2.9 hereof shall survive termination of this Agreement.

Appears in 2 contracts

Samples: Credit Agreement (Animal Health International, Inc.), Credit Agreement (Animal Health International, Inc.)

Special Provisions Applicable to Libor Borrowings. (a) If, after the date of this Agreement, the adoption of any applicable Legal Requirement or any change in any applicable Legal Requirement or in the interpretation or administration thereof by any Governmental Authority or compliance by the Agent or any Lender with any request or directive (whether or not having the force of law) of any Governmental Authority shall at any time make it unlawful or impracticable for any Lender to permit the establishment of or to maintain any LIBOR Borrowing, the commitment of the Lenders to establish or maintain the Adjusted LIBO Rate affected by such adoption or change shall forthwith be canceled, the Agent or such Lender shall use reasonable efforts to give the Borrower written notice thereof within a reasonable time after discovery of such adoption or change by the Agent or such Lender, as applicable (it being agreed, however, that any failure to provide such notice to the Borrower shall not in any manner affect the rights under this Section 2.7(a) of the Agent or any Lender), and the Borrower shall forthwith, upon demand by the Agent to the Borrower, (1) convert the Adjusted LIBO Rate with respect to which such demand was made to the Alternate Base Rate; (2) pay all accrued and unpaid interest to date on the amount so converted; and (3) pay any amounts required to compensate the Agent and the Lenders for any additional cost or expense which the Agent or any Lender may incur as a result of such adoption of or change in such Legal Requirement or in the interpretation or administration thereof and any Consequential Loss which the Agent or any Lender may incur as a result of such conversion to the Alternate Base Rate. (b) If the adoption of any applicable Legal Requirement or any change in any applicable Legal Requirement or in the interpretation or administration thereof by any Governmental Authority or compliance by the Agent or any Lender with any request or directive (whether or not having the force of law) from any Governmental Authority shall at any time as a result of any portion of the principal balance of the Term Notes being maintained on the basis of the Adjusted LIBO Rate: (1) impose, modify, increase or deem applicable any reserve requirement (excluding that portion of any reserve requirement included in the calculation of the Statutory Reserves), special deposit requirement or similar requirement (including state law requirements and Regulation D) imposed, modified, increased or deemed applicable by any Governmental Authority against assets held by the Agent or any Lender, or against deposits or accounts in or for the account of the Agent or any Lender, or against loans made by the Agent or any Lender, or against any other funds, obligations or other Property owned or held by the Agent or any Lender; or (2) impose on the Agent or any Lender any other materially restrictive or limiting condition regarding any LIBOR Borrowing; and the result of any of the foregoing is to increase the cost to any Lender of agreeing to make or of making, renewing or maintaining such borrowing on the basis of the Adjusted LIBO Rate, or reduce the amount of principal or interest received by any Lender, then the Agent or such Lender shall use reasonable efforts to give the Borrower written notice thereof within a reasonable time after discovery of such adoption or change by the Agent or such Lender, as applicable (it being agreed, however, that any failure to provide such notice to the Borrower shall not in any manner affect the rights under this Section 2.7(b) of the Agent or any Lender), and, upon demand by such Lender, the Borrower shall pay to such Lender, from time to time as specified by such Lender, additional amounts which shall compensate such Lender for such increased cost or reduced amount. Such Lender will promptly notify the Borrower in writing of any event, upon becoming actually aware of it, which will entitle any Lender to additional amounts pursuant to this paragraph. Such Lender’s determination of the amount of any such increased cost, increased reserve requirement or reduced amount shall be conclusive and binding, absent manifest error, provided that the calculation thereof and reason therefore is certified and is set forth in reasonable detail in such certification by such Lender. The Borrower shall have the right, if it receives from any Lender any notice referred to in the preceding paragraph, upon three (3) Business Days’ notice to the Agent, either (i) to repay in full (but not in part) any borrowing with respect to which such notice was given, together with any accrued interest thereon, or (ii) to convert the Adjusted LIBO Rate in effect with respect to such borrowing from such Lender to the Alternate Base Rate; provided, that any such repayment or conversion shall be accompanied by payment of (x) the amount required to compensate the appropriate Lender or Lenders for the increased cost or reduced amount referred to in the preceding paragraph; (y) all accrued and unpaid interest to date on the amount so repaid or converted; and (z) any Consequential Loss which may be incurred as a result of such repayment or conversion. Additionally, if it receives from any Lender any notice referred to in the preceding paragraph, the Borrower shall also have the corresponding rights in Section 10.16(c). (c) If for any reason with respect to any Interest Period the Agent shall have in good faith determined (which determination shall be conclusive and binding upon the Borrower) that: : (1) the Agent is unable through its customary general practices to determine a rate at which the Agent is offered deposits in United States dollars by prime banks in the London interbank market, in the appropriate amount for the appropriate period, or by reason of circumstances affecting the London interbank market, generally, the Agent is not being offered deposits for the applicable Interest Period and in an amount equal to the amount of the Agent’s pro-rata portion of any LIBOR Borrowing requested by the Borrower, or (2) the Adjusted LIBO Rate will not adequately and fairly reflect the cost to any Lender of making and maintaining any LIBOR Borrowing hereunder for any proposed Interest Period, then the Agent shall give the Borrower notice thereof and thereupon each outstanding LIBOR Borrowing then in effect shall be converted, without any notice to or from the Borrower, upon the termination of the Interest Period then in effect to an Alternate Base Rate Borrowing. (d) Each Credit Party, jointly and severally with all other Credit Parties, hereby agrees to indemnify the Agent and each of the Lenders against and hold each of them harmless from any Consequential Loss which it may incur or sustain as a consequence of any prepayment (mandatory or optional) or default by the Borrower in the payment of any principal amount of or interest on each Term Note or any failure by the Borrower to convert or to borrow any LIBOR Borrowing on the date specified by the Borrower. This agreement shall survive the payment of each Term Note. A certificate as to any additional amounts payable to the Agent or any Lender pursuant to this paragraph, detailing the basis therefore and submitted by the Agent or such Lender to the Borrower shall be conclusive and binding upon the Credit Parties, absent manifest error, provided the calculation thereof is set forth in reasonable detail in such notice. (e) If the Borrower requests quotes of the Adjusted LIBO Rate for different Interest Periods being considered for election by the Borrower, the Agent will use reasonable efforts to provide such quotes to the Borrower promptly. However, all such quotes provided shall be representative only and shall not be binding on the Agent or any Lender, nor shall they be determinative, directly or indirectly, of any Adjusted LIBO Rate or any component of any such rate, nor will the Borrower’s failure to receive or the Agent’s failure to provide any requested quote or quotes either (1) excuse or extend the time for performance of any obligation of the Borrower or for the exercise of any right, option or election of the Borrower or (2) impose any duty or liability on the Agent or any Lender. If the Borrower requests a list of the Business Days in any calendar month, the Agent will use reasonable efforts to provide such list promptly. However, any such list provided shall be understood to identify only those days which the Agent believes in good faith at the time such list is prepared will be the Business Days for such month. The Agent shall not have any liability for any failure to provide, delay in providing, error or mistake in or omission from, any such quote or list. (f) With respect to any Lender having a LIBOR Lending Office which differs from its Domestic Lending Office, all Term Loans advanced by such Lender’s LIBOR Lending Office shall be deemed to have been made by such Lender and the obligation of the Borrower to repay such Term Loans shall nevertheless be to such Lender and shall be deemed held by such Lender, to the extent of such portions of the Term Loan, for the account of such Lender’s LIBOR Lending Office. (g) Notwithstanding any provision of this Agreement to the contrary, each Lender shall be entitled to fund and maintain its funding of all or any part of the Term Loans hereunder in any manner it sees fit, it being understood, however, that for the purposes of this Agreement, all determinations hereunder shall be made as if such Lender had actually funded and maintained its portion of each LIBOR Borrowing during each Interest Period for the Term Loans through the purchase of deposits having a maturity corresponding to such Interest Period and bearing an interest rate equal to the LIBO Rate for such Interest Period. (h) The Borrower’s obligation to pay increased costs and Consequential Loss with regard to each LIBOR Borrowing as specified in this Section 2.7 hereof shall survive termination of this Agreement.

Appears in 1 contract

Samples: Term Loan Agreement (Animal Health International, Inc.)

Special Provisions Applicable to Libor Borrowings. (a) If, after the date of this Agreement, the adoption of any applicable Legal Requirement or any change in any applicable Legal Requirement or in the interpretation or administration thereof by any Governmental Authority or compliance by ~~the Agent or any~~ Lender with any request or directive (whether or not having the force of law) of any Governmental Authority shall at any time make it unlawful or impracticable for ~~any~~ Lender to permit the establishment of or to maintain any LIBOR Borrowing, the commitment of ~~the Lenders~~ Lender to establish or maintain the ~~Adjusted LIBO Rate~~ LIBOR Borrowings affected by such adoption or change shall forthwith be canceled, the Agent or such Lender shall use reasonable efforts to give the Borrower written notice thereof within a reasonable time after discovery of such adoption or change by the Agent or such Lender, as applicable (it being agreed, however, that any failure to provide such notice to the Borrower shall not in any manner affect the rights under this Section 2.7(a) of the Agent or any Lender), canceled and the Borrower shall forthwith, upon demand by ~~the Agent~~ Lender to ~~the~~ Borrower, (1) convert ~~the Adjusted LIBO Rate with respect~~ such LIBOR Borrowings to ~~which such demand was made to the~~ Alternate Base ~~Rate~~Rate Borrowings; (2) pay all accrued and unpaid interest to date on the amount so converted; and (3) pay any amounts required under paragraph (d) below. All present and subsequent requests for LIBOR Borrowings by Borrower shall be deemed to ~~compensate the Agent and the Lenders~~ be requests for ~~any additional cost or expense which the Agent or any~~ Alternate Base Rate Borrowings with respect to Lender ~~may incur as a result of~~ for all LIBOR Borrowings affected by such adoption of or change in until such ~~Legal Requirement~~ adoption or in change no longer affects the ~~interpretation or administration thereof and any Consequential Loss which the Agent or any Lender may incur as a result of such conversion to the Alternate Base Rate~~LIBOR Borrowings for Lender. (b) If the adoption of any applicable Legal Requirement or any change in any applicable Legal Requirement or in the interpretation or administration thereof by any Governmental Authority or compliance by ~~the Agent or any~~ Lender with any request or directive (whether or not having the force of law) from any Governmental Authority shall at any time as a result of any portion of the principal balance of the ~~Term Notes~~ Loans being maintained on the basis of the Adjusted ~~LIBO Rate: (1)~~ LIBOR Rate impose, modify, increase or deem applicable any reserve ~~requirement (excluding that portion of any reserve requirement included in the calculation of the Statutory Reserves)~~requirement, special deposit requirement or similar requirement (including state law requirements and Regulation D, but excluding Statutory Reserves) ~~imposed, modified, increased or deemed applicable by any Governmental Authority~~ against assets held by ~~the Agent or any~~ Lender, or against deposits or accounts in or for the account of ~~the Agent or any~~ Lender, or against loans made by ~~the Agent or any~~ Lender, or against any other funds, obligations or other Property owned or held by ~~the Agent or any Lender; or (2) impose on the Agent or any~~ Lender ~~any other materially restrictive or limiting condition regarding any LIBOR Borrowing;~~ and the result of any of the foregoing is to increase the cost to ~~any~~ Lender of agreeing to make or of making, renewing or maintaining such borrowing on the basis of the Adjusted ~~LIBO~~ LIBOR Rate, or reduce the amount of principal or interest received by ~~any~~ Lender, then the Agent or such Lender shall use reasonable efforts to give the Borrower written notice thereof within a reasonable time after discovery of such adoption or change by the Agent or such Lender, as applicable (it being agreed, however, that any failure to provide such notice to the Borrower shall not in any manner affect the rights under this Section 2.7(b) of the Agent or any Lender), and, upon demand by such Lender, the Borrower shall pay to ~~such Lender,~~ Lender from time to time ~~as specified by such Lender,~~ additional amounts ~~which shall~~ sufficient to compensate such Lender for such increased cost or reduced amount. Such Lender will promptly notify the Borrower in writing of any event, upon becoming actually aware of it, which will entitle any Lender to additional amounts pursuant to this paragraph. Such Lender’s determination of the amount of any such increased cost, increased reserve requirement or reduced amount shall be conclusive and binding, absent manifest error, provided that the calculation thereof and reason therefore is certified and is set forth in reasonable detail in such certification by such Lender. The Borrower shall have the right, if it receives from any Lender any notice referred to in the preceding paragraph, upon three (3) Business Days’ notice to the Agent, either (i) to repay in full (but not in part) any borrowing with respect to which such notice was given, together with any accrued interest thereon, or (ii) to convert the Adjusted LIBO Rate in effect with respect to such borrowing from such Lender to the Alternate Base Rate; provided, that any such repayment or conversion shall be accompanied by payment of (x) the amount required to compensate the appropriate Lender or Lenders for the increased cost or reduced amount referred to in the preceding paragraph; (y) all accrued and unpaid interest to date on the amount so repaid or converted; and (z) any Consequential Loss which may be incurred as a result of such repayment or conversion. Additionally, if it receives from any Lender any notice referred to in the preceding paragraph, the Borrower shall also have the corresponding rights in Section 10.16(c). (c) If for any reason with respect to any Interest ~~Period the Agent~~ Period, Lender shall have ~~in good faith~~ determined (which determination shall be conclusive and binding upon ~~the~~ Borrower) that: : (1) ~~the Agent~~ Lender is unable through its customary general practices to determine a rate at which ~~the Agent~~ Lender is offered deposits in United States dollars by prime banks in the London interbank market, in the appropriate amount for the appropriate period, or by reason of circumstances affecting the London interbank market, generally, ~~the Agent~~ Lender is not being offered deposits for the applicable Interest Period and in an amount equal to the amount ~~of the Agent’s pro-rata portion of~~ any LIBOR Borrowing requested by ~~the~~ Borrower, or (2) the Adjusted ~~LIBO~~ LIBOR Rate will not adequately and fairly reflect the cost to ~~any~~ Lender of making and maintaining any LIBOR Borrowing hereunder for any proposed Interest Period, then ~~the Agent~~ Lender shall give ~~the~~ Borrower notice thereof and ~~thereupon~~ thereupon, (A) any Rate Selection Notice previously given by Borrower designating an Adjusted LIBOR Rate which has not commenced as of the date of such notice from Lender shall be deemed for all purposes hereof to be of no force and effect, as if never given, and (B) until Lender shall notify Borrower that the circumstances giving rise to such notice from Lender longer exist, each Rate Selection Notice requesting an Adjusted LIBOR Rate shall be deemed a request for an Alternate Base Rate Borrowing, and each outstanding LIBOR Borrowing then in effect shall be converted, without any notice to or from the Borrower, upon the termination of the Interest Period then in effect to an Alternate Base Rate Borrowing. (d) ~~Each Credit Party, jointly and severally with all other Credit Parties,~~ Borrower hereby agrees to indemnify ~~the Agent and each of the Lenders~~ Lender against and hold ~~each of them~~ Lender harmless from any ~~Consequential Loss which it~~ actual loss or expense that Lender may sustain or incur ~~or sustain~~ as a consequence of ~~any prepayment~~ (~~mandatory or optional~~i) ~~or default by the Borrower in the payment of any principal amount of or interest on each Term Note or any~~ failure by ~~the~~ Borrower to timely convert or to borrow any LIBOR Borrowing after Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) failure by Borrower to make any prepayment after Borrower has given a notice thereof in accordance with the provisions of this Agreement or (iii) the making of a payment or prepayment of any LIBOR Borrowing, or the conversion of any LIBOR Borrowing, on a day that is not the ~~date specified~~ last day of an Interest Period with respect thereto, including without limitation, in each case, any such loss or expense arising from the liquidation or reemployment of funds obtained by ~~the Borrower. This agreement shall survive the payment of each Term Note. A certificate as to any additional amounts~~ Lender or from fees payable to terminate the ~~Agent or any Lender pursuant to this paragraph, detailing the basis therefore and submitted by the Agent or~~ deposits from which such ~~Lender to the Borrower shall be conclusive and binding upon the Credit Parties, absent manifest error, provided the calculation thereof is set forth in reasonable detail in such notice~~funds were obtained. (e) If ~~the~~ Borrower requests quotes of the Adjusted ~~LIBO~~ LIBOR Rate for different Interest Periods being considered for election by ~~the~~ Borrower, ~~the Agent~~ Lender will use reasonable efforts to provide such quotes to ~~the~~ Borrower promptly. However, all such quotes provided shall be representative only and shall not be binding on ~~the Agent or any~~ Lender, nor shall they be determinative, directly or indirectly, of any Adjusted ~~LIBO~~ LIBOR Rate or any component of any such rate, nor will ~~the~~ Borrower’s failure to receive or ~~the Agent~~Lender’s failure to provide any requested quote or quotes either (1) excuse or extend the time for performance of any obligation of ~~the~~ Borrower or for the exercise of any right, option or election of ~~the~~ Borrower or (2) impose any duty or liability on ~~the Agent or any~~ Lender. If ~~the~~ Borrower requests a list of the Business Days in any calendar month, ~~the Agent~~ Lender will use reasonable efforts to provide such list promptly. However, any such list provided shall be understood to identify only those days which ~~the Agent~~ Lender believes in good faith at the time such list is prepared will be the Business Days for such month. ~~The Agent~~ Lender shall not have any liability for any failure to provide, delay in providing, error or mistake in or omission from, any such quote or list. (f) With respect to ~~any~~ Lender having a LIBOR Lending Office which differs from its Domestic Lending Office, all ~~Term~~ Loans that are part of LIBOR Borrowings advanced by ~~such~~ Lender’s LIBOR Lending Office shall be deemed to have been made by ~~such~~ Lender and the obligation of ~~the~~ Borrower to repay such ~~Term~~ Loans shall nevertheless be to ~~such~~ Lender and shall be deemed held by ~~such Lender, to the extent of such portions of the Term Loan,~~ Lender for the account of ~~such~~ Lender’s LIBOR Lending Office. (g) Notwithstanding any provision of this Agreement to the contrary, each Lender shall be entitled to fund and maintain its funding of all or any part of the Term Loans hereunder in any manner it sees fit, it being understood, however, that for the purposes of this Agreement, all determinations hereunder shall be made as if such Lender had actually funded and maintained its portion of each LIBOR Borrowing during each Interest Period for the Term Loans through the purchase of deposits having a maturity corresponding to such Interest Period and bearing an interest rate equal to the LIBO Rate for such Interest Period. (h) The Borrower’s obligation to pay increased costs and Consequential Loss with regard to each LIBOR Borrowing as specified in this Section 2.7 hereof shall survive termination of this Agreement.

Appears in 1 contract

Samples: Credit Agreement (Luminex Corp)

Special Provisions Applicable to Libor Borrowings. (a) If, after the date of this Agreement, the adoption of any applicable Legal Requirement or any change in any applicable Legal Requirement or in the interpretation or administration thereof by any Governmental Authority or compliance by the ~~Agent or any~~ Lender with any request or directive (whether or not having the force of law) of any Governmental Authority shall at any time make it unlawful or ~~impracticable~~ impossible for ~~any~~ the Lender to permit the establishment of or to maintain any LIBOR Borrowing, the commitment of the ~~Lenders~~ Lender to establish or maintain the Adjusted ~~LIBO~~ LIBOR Rate affected by such adoption or change shall forthwith be canceled, the Agent or such Lender shall use reasonable efforts to give the Borrower written notice thereof within a reasonable time after discovery of such adoption or change by the Agent or such Lender, as applicable (it being agreed, however, that any failure to provide such notice to the Borrower shall not in any manner affect the rights under this Section 2.7(a) of the Agent or any Lender), canceled and the Borrower shall forthwith, upon demand by the ~~Agent~~ Lender to the Borrower, (1) convert the Adjusted ~~LIBO~~ LIBOR Rate with respect to which such demand was made to the Alternate Base Rate; (2) pay all accrued and unpaid interest to date on the amount so converted; and (3) pay any amounts required to compensate the ~~Agent and the Lenders~~ Lender for any additional cost or expense which the ~~Agent or any~~ Lender may incur as a result of such adoption of or change in such Legal Requirement or in the interpretation or administration thereof and any Consequential Loss which the ~~Agent or any~~ Lender may incur as a result of such conversion to the Alternate Base Rate. If, when the Lender so notifies the Borrower, the Borrower has given a Rate Selection Notice specifying one or more borrowings of the type with respect to which such demand was made but the selected Interest Period or Interest Periods has not yet begun, such Rate Selection Notice shall be deemed to be of no force and effect, as if never made, and the balance of the Revolving Loans specified in such Rate Selection Notice shall bear interest at the Alternate Base Rate until a different available Interest Option shall be designated in accordance herewith. (b) If the adoption of any applicable Legal Requirement or any change in any applicable Legal Requirement or in the interpretation or administration thereof by any Governmental Authority or compliance by the ~~Agent or any~~ Lender with any request or directive (whether or not having the force of law) from any Governmental Authority shall at any time as a result of any portion of the principal balance of the ~~Term Notes~~ Revolving Note being maintained on the basis of the Adjusted ~~LIBO~~ LIBOR Rate: (1) subject the Lender (or make it apparent that the Lender is subject) to any tax (including any United States interest equalization tax), levy, impost, duty, charge, fee (collectively, "Taxes"), or any deduction or withholding for any Taxes on or from the payment due under any LIBOR Borrowing or other amounts due hereunder, other than income and franchise taxes of the United States and its political subdivisions; or (2) change the basis of taxation of payments due from the Borrower to the Lender under any LIBOR Borrowing (otherwise than by a change in the rate of taxation of the overall net income of the Lender); or (3) impose, modify, increase or deem applicable any reserve requirement (excluding that portion of any reserve requirement included in the calculation of the Statutory Reserves), special deposit requirement or similar requirement (including state law requirements and Regulation D)) imposed, modified, increased or deemed applicable by any Governmental Authority against assets held by the ~~Agent or any~~ Lender, or against deposits or accounts in or for the account of the ~~Agent or any~~ Lender, or against loans made by the ~~Agent or any~~ Lender, or against any other funds, obligations or other Property owned or held by the ~~Agent or any~~ Lender; or (24) impose on the ~~Agent or any~~ Lender any other ~~materially restrictive or limiting~~ condition regarding any LIBOR Borrowing; and the result of any of the foregoing is to increase the cost to ~~any~~ the Lender of agreeing to make or of making, renewing or maintaining such borrowing on the basis of the Adjusted ~~LIBO~~ LIBOR Rate, or reduce the amount of principal or interest received by ~~any~~ the Lender, then the Agent or such Lender shall use reasonable efforts to give the Borrower written notice thereof within a reasonable time after discovery of such adoption or change by the Agent or such Lender, as applicable (it being agreed, however, that any failure to provide such notice to the Borrower shall not in any manner affect the rights under this Section 2.7(b) of the Agent or any Lender), andthen, upon demand by ~~such~~ the Lender, the Borrower shall pay to ~~such~~ the Lender, from time to time as specified by ~~such~~ the Lender, additional amounts which shall compensate ~~such~~ the Lender for such increased cost or reduced amount. ~~Such~~ The Lender will promptly notify the Borrower in writing of any event, upon becoming actually aware of it, which will entitle ~~any~~ the Lender to additional amounts pursuant to this paragraph. ~~Such~~ The Lender’s 's determination of the amount of any such increased cost, increased reserve requirement or reduced amount shall be conclusive and binding, absent manifest error, provided that the calculation thereof ~~and reason therefore is certified and~~ is set forth in reasonable detail in such ~~certification by such Lender~~notice. The Borrower shall have the right, if it receives from ~~any~~ the Lender any notice referred to in the preceding paragraph, upon three (3) Business Days’ ' notice to the ~~Agent~~Lender, either (i) to repay in full (but not in part) any borrowing with respect to which such notice was given, together with any accrued interest thereon, or (ii) to convert the Adjusted ~~LIBO~~ LIBOR Rate in effect with respect to such borrowing ~~from such Lender~~ to the Alternate Base Rate; provided, that any such repayment or conversion shall be accompanied by payment of (x) the amount required to compensate the ~~appropriate~~ Lender ~~or Lenders~~ for the increased cost or reduced amount referred to in the preceding paragraph; (y) all accrued and unpaid interest to date on the amount so repaid or converted; , and (z) any Consequential Loss which may be incurred as a result of such repayment or conversion~~. Additionally, if it receives from any Lender any notice referred to in the preceding paragraph, the Borrower shall also have the corresponding rights in Section 10.16(c)~~. (c) If for any reason with respect to any Interest Period the ~~Agent~~ Lender shall have ~~in good faith~~ determined (which determination shall be conclusive and binding upon the Borrower) that: (1) the ~~Agent~~ Lender is unable through its customary general practices to determine a rate at which the ~~Agent~~ Lender is offered deposits in United States dollars by prime banks in the London interbank market, in the appropriate amount for the appropriate period, or by reason of circumstances affecting the London interbank market, generally, the ~~Agent~~ Lender is not being offered deposits for the applicable Interest Period and in an amount equal to the amount ~~of the Agent’s pro-rata portion of any LIBOR Borrowing~~ requested by the Borrower, or (2) the Adjusted ~~LIBO~~ LIBOR Rate will not ~~adequately and fairly~~ reflect the actual cost to ~~any~~ the Lender of making and maintaining any LIBOR Borrowing hereunder for any proposed Interest Period, then the ~~Agent~~ Lender shall give the Borrower notice thereof and ~~thereupon~~ thereupon, (A) any Rate Selection Notice previously given by the Borrower designating an Adjusted LIBOR Rate which has not commenced as of the date of such notice from the Lender shall be deemed for all purposes hereof to be of no force and effect, as if never given, and (B) until the Lender shall notify the Borrower that the circumstances giving rise to such notice from the Lender no longer exist, each Rate Selection Notice requesting an Adjusted LIBOR Rate shall be deemed a request for an Alternate Base Rate Borrowing, and each outstanding LIBOR Borrowing then in effect shall be converted, without any notice to or from the Borrower, upon the termination of the Interest Period then in ~~effect~~ effect, to an Alternate Base Rate Borrowing. (d) ~~Each Credit Party~~THE BORROWER HEREBY AGREES TO INDEMNIFY THE LENDER AGAINST AND HOLD THE LENDER HARMLESS FROM ANY LOSS OR EXPENSE WHICH IT MAY INCUR OR SUSTAIN AS A CONSEQUENCE OF ANY UNTIMELY PAYMENT (MANDATORY OR OPTIONAL) OR DEFAULT BY THE BORROWER IN THE PAYMENT OF ANY PRINCIPAL AMOUNT OF OR INTEREST ON THE NOTE, ~~jointly and severally with all other Credit Parties~~OR ANY FAILURE BY THE BORROWER TO CONVERT OR TO BORROW ANY LIBOR BORROWING ON THE DATE SPECIFIED BY THE BORROWER, ~~hereby agrees to indemnify the Agent and each of the Lenders against and hold each of them harmless from any Consequential Loss which it may incur or sustain as a consequence of any prepayment~~ IN EACH CASE INCLUDING ANY INTEREST PAYABLE BY THE LENDER TO THE LENDERS OF THE FUNDS OBTAINED BY IT IN ORDER TO MAKE OR MAINTAIN ANY LIBOR BORROWING (mandatory or optional) or default by the Borrower in the payment of any principal amount of or interest on each Term Note or any failure by the Borrower to convert or to borrow any LIBOR Borrowing on the date specified by the BorrowerOR ANY PORTION THEREOF), AND, TO THE EXTENT NOT COVERED ABOVE, ANY CONSEQUENTIAL LOSS. ~~This agreement shall survive the payment of each Term Note~~THIS AGREEMENT SHALL SURVIVE THE PAYMENT OF THE REVOLVING NOTE. A ~~certificate as to any additional amounts payable to the Agent or any Lender pursuant to this paragraph~~CERTIFICATE AS TO ANY ADDITIONAL AMOUNTS PAYABLE TO THE LENDER PURSUANT TO THIS PARAGRAPH SUBMITTED BY THE LENDER TO THE BORROWER SHALL BE CONCLUSIVE AND BINDING UPON THE BORROWER, ~~detailing the basis therefore and submitted by the Agent or such Lender to the Borrower shall be conclusive and binding upon the Credit Parties~~ABSENT MANIFEST ERROR, ~~absent manifest error, provided the calculation thereof is set forth in reasonable detail in such notice~~PROVIDED THE CALCULATION THEREOF IS SET FORTH IN REASONABLE DETAIL IN SUCH NOTICE. (e) If the Borrower requests quotes of the Adjusted ~~LIBO~~ LIBOR Rate for different Interest Periods being considered for election by the Borrower, the ~~Agent~~ Lender will use reasonable efforts to provide such quotes to the Borrower promptly. However, all such quotes provided shall be representative only and shall not be binding on the ~~Agent or any~~ Lender, nor shall they be determinative, directly or indirectly, of any Adjusted ~~LIBO~~ LIBOR Rate or any component of any ~~such~~ rate, nor will the Borrower’s 's failure to receive or the ~~Agent’s~~ Lender's failure to provide any requested quote or quotes either (1) excuse or extend the time for performance of ~~any~~ an obligation of the Borrower or for the exercise of any right, option or election of the Borrower or (2) impose any duty or liability on the ~~Agent or any~~ Lender. If the Borrower requests a list of the Business Days in any calendar month, the ~~Agent~~ Lender will use reasonable efforts to provide such list promptly. However, any such list provided shall be understood to identify only those days which the ~~Agent~~ Lender believes in good faith at the time such list is prepared will be the Business Days for such month. The ~~Agent~~ Lender shall not have any liability for any failure to provide, delay in providing, error or mistake in or omission from, any such quote or list. (f) ~~With respect to any~~ If the Lender ~~having~~ has a LIBOR Lending Office which differs from its Domestic Lending Office, all ~~Term~~ Revolving Loans advanced by ~~such~~ the Lender’s 's LIBOR Lending Office shall be deemed to have been made by ~~such~~ the Lender and the obligation of the Borrower to repay such ~~Term~~ Revolving Loans shall nevertheless be to ~~such~~ the Lender and shall be deemed held by ~~such~~ the Lender, to the extent of such portions of the ~~Term~~ Revolving Loan, for the account of ~~such~~ the Lender’s 's LIBOR Lending Office. (g) Notwithstanding any provision of this Agreement to the contrary, ~~each~~ the Lender shall be entitled to fund and maintain its funding of all or any part of the ~~Term~~ Revolving Loans hereunder in any manner it sees fit, it being understood, however, that for the purposes of this Agreement, all determinations hereunder shall be made as if ~~such~~ the Lender had actually funded and maintained its portion of each LIBOR Borrowing during each Interest Period for the ~~Term~~ Revolving Loans through the purchase of deposits having a maturity corresponding to such Interest Period and bearing an interest rate equal to the ~~LIBO~~ LIBOR Rate for such Interest Period. (h) The Borrower’s 's obligation to pay increased costs and Consequential Loss with regard to each LIBOR Borrowing as specified in this Section ~~2.7~~ 2.9 hereof shall survive termination of this Agreement.

Appears in 1 contract

Samples: Credit Agreement (Tidel Technologies Inc)

Special Provisions Applicable to Libor Borrowings. (a) If, after the date of this Agreement, the adoption of any applicable Legal Requirement or any change in any applicable Legal Requirement or in the interpretation or administration thereof by any Governmental Authority or compliance by the ~~Agent or any~~ Lender with any request or directive (whether or not having the force of law) of any Governmental Authority shall at any time make it unlawful or ~~impracticable~~ impossible for ~~any~~ Lender to permit the establishment of or to maintain any LIBOR Borrowing, the commitment of the ~~Lenders~~ Lender to establish or maintain the Adjusted ~~LIBO~~ LIBOR Rate affected by such adoption or change shall forthwith be canceled, the Agent or such Lender shall use reasonable efforts to give the Borrower written notice thereof within a reasonable time after discovery of such adoption or change by the Agent or such Lender, as applicable (it being agreed, however, that any failure to provide such notice to the Borrower shall not in any manner affect the rights under this Section 2.7(a) of the Agent or any Lender), canceled and the Borrower shall forthwith, upon demand by the ~~Agent~~ Lender to the Borrower, (1) convert the Adjusted ~~LIBO~~ LIBOR Rate with respect to which such demand was made to the Alternate Base Rate; (2) pay all accrued and unpaid interest to date on the amount so converted; and (3) pay any amounts required to compensate the ~~Agent and the Lenders~~ Lender for any additional cost or expense which the ~~Agent or any~~ Lender may incur as a result of such adoption of or change in such Legal Requirement or in the interpretation or administration thereof and any Consequential Loss which the ~~Agent or any~~ Lender may incur as a result of such conversion to the Alternate Base Rate. If, when the Lender so notifies the Borrower, the Borrower has given a Rate Selection Notice specifying one or more borrowings of the type with respect to which such demand was made but the selected Interest Period or Interest Periods has not yet begun, such Rate Selection Notice shall be deemed to be of no force and effect, as if never made, and the balance of the Loans specified in such Rate Selection Notice shall bear interest at the Alternate Base Rate until a different available Interest Option shall be designated in accordance herewith. (b) If the adoption of any applicable Legal Requirement or any change in any applicable Legal Requirement or in the interpretation or administration thereof by any Governmental Authority or compliance by the ~~Agent or any~~ Lender with any request or directive (whether or not having the force of law) from any Governmental Authority shall at any time as a result of any portion of the principal balance of the ~~Term Notes~~ Note being maintained on the basis of the Adjusted ~~LIBO~~ LIBOR Rate: (1) ~~impose, modify, increase~~ subject Lender (or ~~deem applicable~~ make it apparent that Lender is subject) to any ~~reserve requirement~~ tax (~~excluding that portion of~~ including any ~~reserve requirement included in the calculation of the Statutory Reserves~~United States interest equalization tax), ~~special deposit requirement or similar requirement~~ levy, impost, duty, charge, fee (~~including state law requirements and Regulation D) imposed~~collectively, ~~modified~~"TAXES"), ~~increased or deemed applicable by any Governmental Authority against assets held by the Agent~~ or any ~~Lender,~~ deduction or against deposits or accounts in or for the account of the Agent or any Lender, or against loans made by the Agent or any Lender, or against any other funds, obligations or other Property owned or held by the Agent or any Lender; or (2) impose on the Agent or any Lender any other materially restrictive or limiting condition regarding any LIBOR Borrowing; and the result of any of the foregoing is to increase the cost to any Lender of agreeing to make or of making, renewing or maintaining such borrowing on the basis of the Adjusted LIBO Rate, or reduce the amount of principal or interest received by any Lender, then the Agent or such Lender shall use reasonable efforts to give the Borrower written notice thereof within a reasonable time after discovery of such adoption or change by the Agent or such Lender, as applicable (it being agreed, however, that any failure to provide such notice to the Borrower shall not in any manner affect the rights under this Section 2.7(b) of the Agent or any Lender), and, upon demand by such Lender, the Borrower shall pay to such Lender, from time to time as specified by such Lender, additional amounts which shall compensate such Lender for such increased cost or reduced amount. Such Lender will promptly notify the Borrower in writing of any event, upon becoming actually aware of it, which will entitle any Lender to additional amounts pursuant to this paragraph. Such Lender’s determination of the amount of any such increased cost, increased reserve requirement or reduced amount shall be conclusive and binding, absent manifest error, provided that the calculation thereof and reason therefore is certified and is set forth in reasonable detail in such certification by such Lender. The Borrower shall have the right, if it receives from any Lender any notice referred to in the preceding paragraph, upon three (3) Business Days’ notice to the Agent, either (i) to repay in full (but not in part) any borrowing with respect to which such notice was given, together with any accrued interest thereon, or (ii) to convert the Adjusted LIBO Rate in effect with respect to such borrowing from such Lender to the Alternate Base Rate; provided, that any such repayment or conversion shall be accompanied by payment of (x) the amount required to compensate the appropriate Lender or Lenders for the increased cost or reduced amount referred to in the preceding paragraph; (y) all accrued and unpaid interest to date on the amount so repaid or converted; and (z) any Consequential Loss which may be incurred as a result of such repayment or conversion. Additionally, if it receives from any Lender any notice referred to in the preceding paragraph, the Borrower shall also have the corresponding rights in Section 10.16(c). (c) If withholding for any ~~reason with respect to any Interest Period~~ Taxes on or from the Agent shall have in good faith determined (which determination shall be conclusive and binding upon the Borrower) that: (1) the Agent is unable through its customary general practices to determine a rate at which the Agent is offered deposits in United States dollars by prime banks in the London interbank market, in the appropriate amount for the appropriate period, or by reason of circumstances affecting the London interbank market, generally, the Agent is not being offered deposits for the applicable Interest Period and in an amount equal to the amount of the Agent’s pro-rata portion of payment due under any LIBOR Borrowing ~~requested by~~ or other amounts due hereunder, other than income and franchise taxes of the ~~Borrower,~~ United States and its political subdivisions; or (2) change the ~~Adjusted LIBO Rate will not adequately and fairly reflect~~ basis of taxation of payments due from the ~~cost~~ Borrower to ~~any~~ the Lender ~~of making and maintaining~~ under any LIBOR Borrowing ~~hereunder for any proposed Interest Period, then~~ (otherwise than by a change in the ~~Agent shall give the Borrower notice thereof and thereupon each outstanding LIBOR Borrowing then in effect shall be converted, without any notice to or from the Borrower, upon the termination~~ rate of taxation of the ~~Interest Period then in effect to an Alternate Base Rate Borrowing. (d) Each Credit Party, jointly and severally with all other Credit Parties, hereby agrees to indemnify the Agent and each~~ overall net income of the Lenders against and hold each of them harmless from any Consequential Loss which it may incur or sustain as a consequence of any prepayment (mandatory or optional) or default by the Borrower in the payment of any principal amount of or interest on each Term Note or any failure by the Borrower to convert or to borrow any LIBOR Borrowing on the date specified by the Borrower. This agreement shall survive the payment of each Term Note. A certificate as to any additional amounts payable to the Agent or any Lender pursuant to this paragraph, detailing the basis therefore and submitted by the Agent or such Lender to the Borrower shall be conclusive and binding upon the Credit Parties, absent manifest error, provided the calculation thereof is set forth in reasonable detail in such notice. (e) If the Borrower requests quotes of the Adjusted LIBO Rate for different Interest Periods being considered for election by the Borrower, the Agent will use reasonable efforts to provide such quotes to the Borrower promptly. However, all such quotes provided shall be representative only and shall not be binding on the Agent or any Lender, nor shall they be determinative, directly or indirectly, of any Adjusted LIBO Rate or any component of any such rate, nor will the Borrower’s failure to receive or the Agent’s failure to provide any requested quote or quotes either (1) excuse or extend the time for performance of any obligation of the Borrower or for the exercise of any right, option or election of the Borrower or (2) impose any duty or liability on the Agent or any Lender. If the Borrower requests a list of the Business Days in any calendar month, the Agent will use reasonable efforts to provide such list promptly. However, any such list provided shall be understood to identify only those days which the Agent believes in good faith at the time such list is prepared will be the Business Days for such month. The Agent shall not have any liability for any failure to provide, delay in providing, error or mistake in or omission from, any such quote or list. (f) With respect to any Lender having a LIBOR Lending Office which differs from its Domestic Lending Office, all Term Loans advanced by such Lender’s LIBOR Lending Office shall be deemed to have been made by such Lender and the obligation of the Borrower to repay such Term Loans shall nevertheless be to such Lender and shall be deemed held by such Lender, to the extent of such portions of the Term Loan, for the account of such Lender’s LIBOR Lending Office. (g) Notwithstanding any provision of this Agreement to the contrary, each Lender shall be entitled to fund and maintain its funding of all or any part of the Term Loans hereunder in any manner it sees fit, it being understood, however, that for the purposes of this Agreement, all determinations hereunder shall be made as if such Lender had actually funded and maintained its portion of each LIBOR Borrowing during each Interest Period for the Term Loans through the purchase of deposits having a maturity corresponding to such Interest Period and bearing an interest rate equal to the LIBO Rate for such Interest Period. (h) The Borrower’s obligation to pay increased costs and Consequential Loss with regard to each LIBOR Borrowing as specified in this Section 2.7 hereof shall survive termination of this Agreement.); or

Appears in 1 contract

Samples: Credit Agreement (Tidel Technologies Inc)

Special Provisions Applicable to Libor Borrowings. (a) If, after the date of this Agreement, ~~the adoption of~~ any ~~applicable Legal Requirement or any change~~ Change in ~~any applicable Legal Requirement or in the interpretation or administration thereof by any Governmental Authority~~ Law or compliance by ~~the Agent or any~~ Lender with any request or directive (whether or not having the force of law) of any Governmental Authority shall at any time make it unlawful or impracticable for ~~any~~ Lender to permit the establishment of or to maintain any LIBOR Borrowing, the commitment of ~~the Lenders~~ Lender to establish or maintain the ~~Adjusted LIBO Rate~~ LIBOR Borrowings affected by such adoption or change shall forthwith be canceled, the Agent or such Lender shall use reasonable efforts to give the Borrower written notice thereof within a reasonable time after discovery of such adoption or change by the Agent or such Lender, as applicable (it being agreed, however, that any failure to provide such notice to the Borrower shall not in any manner affect the rights under this Section 2.7(a) of the Agent or any Lender), canceled and the Borrower shall forthwith, upon demand by ~~the Agent~~ Lender to ~~the~~ Borrower, (1) convert ~~the Adjusted LIBO Rate with respect~~ such LIBOR Borrowings to ~~which such demand was made to the Alternate Base Rate~~CBFR Borrowings; (2) pay all accrued and unpaid interest to date on the amount so converted; and (3) pay any amounts required under paragraph (d) below. All present and subsequent requests for LIBOR Borrowings by Borrower shall be deemed to ~~compensate the Agent and the Lenders~~ be requests for ~~any additional cost or expense which the Agent or any~~ CBFR Borrowings with respect to Lender ~~may incur as a result of~~ for all LIBOR Borrowings affected by such adoption of or change in until such ~~Legal Requirement~~ adoption or in change no longer affects the ~~interpretation or administration thereof and any Consequential Loss which the Agent or any Lender may incur as a result of such conversion to the Alternate Base Rate~~LIBOR Borrowings for Lender. (b) If ~~the adoption of~~ any ~~applicable Legal Requirement or any change~~ Change in ~~any applicable Legal Requirement or in the interpretation or administration thereof by any Governmental Authority~~ Law or compliance by ~~the Agent or any~~ Lender with any request or directive (whether or not having the force of law) from any Governmental Authority shall at any time as a result of any portion of the principal balance of the ~~Term Notes~~ Loans being maintained on the basis of the Adjusted ~~LIBO Rate: (1)~~ LIBOR Rate impose, modify, increase or deem applicable any reserve ~~requirement (excluding that portion of any reserve requirement included in the calculation of the Statutory Reserves)~~requirement, special deposit requirement or similar requirement (including state law requirements and Regulation D, but excluding Statutory Reserve Rates) ~~imposed, modified, increased or deemed applicable by any Governmental Authority~~ against assets held by ~~the Agent or any~~ Lender, or against deposits or accounts in or for the account of ~~the Agent or any~~ Lender, or against loans made by ~~the Agent or any~~ Lender, or against any other funds, obligations or other Property owned or held by ~~the Agent or any Lender; or (2) impose on the Agent or any~~ Lender ~~any other materially restrictive or limiting condition regarding any LIBOR Borrowing;~~ and the result of any of the foregoing is to increase the cost to ~~any~~ Lender of agreeing to make or of making, renewing or maintaining such borrowing on the basis of the Adjusted ~~LIBO~~ LIBOR Rate, or reduce the amount of principal or interest received by ~~any~~ Lender, then the Agent or such Lender shall use reasonable efforts to give the Borrower written notice thereof within a reasonable time after discovery of such adoption or change by the Agent or such Lender, as applicable (it being agreed, however, that any failure to provide such notice to the Borrower shall not in any manner affect the rights under this Section 2.7(b) of the Agent or any Lender), and, upon demand by such Lender, the Borrower shall pay to ~~such Lender,~~ Lender from time to time ~~as specified by such Lender,~~ additional amounts ~~which shall~~ sufficient to compensate such Lender for such increased cost or reduced amount. Such Lender will promptly notify the Borrower in writing of any event, upon becoming actually aware of it, which will entitle any Lender to additional amounts pursuant to this paragraph. Such Lender’s determination of the amount of any such increased cost, increased reserve requirement or reduced amount shall be conclusive and binding, absent manifest error, provided that the calculation thereof and reason therefore is certified and is set forth in reasonable detail in such certification by such Lender. The Borrower shall have the right, if it receives from any Lender any notice referred to in the preceding paragraph, upon three (3) Business Days’ notice to the Agent, either (i) to repay in full (but not in part) any borrowing with respect to which such notice was given, together with any accrued interest thereon, or (ii) to convert the Adjusted LIBO Rate in effect with respect to such borrowing from such Lender to the Alternate Base Rate; provided, that any such repayment or conversion shall be accompanied by payment of (x) the amount required to compensate the appropriate Lender or Lenders for the increased cost or reduced amount referred to in the preceding paragraph; (y) all accrued and unpaid interest to date on the amount so repaid or converted; and (z) any Consequential Loss which may be incurred as a result of such repayment or conversion. Additionally, if it receives from any Lender any notice referred to in the preceding paragraph, the Borrower shall also have the corresponding rights in Section 10.16(c). (c) If for any reason with respect to any Interest ~~Period the Agent~~ Period, Lender shall have ~~in good faith~~ determined (which determination shall be conclusive and binding upon ~~the~~ Borrower) that: : (1) ~~the Agent~~ Lender is unable through its customary general practices to determine a rate at which ~~the Agent~~ Lender is offered deposits in United States dollars by prime banks in the London interbank market, in the appropriate amount for the appropriate period, or by reason of circumstances affecting the London interbank market, generally, ~~the Agent~~ Lender is not being offered deposits for the applicable Interest Period and in an amount equal to the amount ~~of the Agent’s pro-rata portion of~~ any LIBOR Borrowing requested by ~~the~~ Borrower, or (2) the Adjusted ~~LIBO~~ LIBOR Rate will not adequately and fairly reflect the cost to ~~any~~ Lender of making and maintaining any LIBOR Borrowing hereunder for any proposed Interest Period, then ~~the Agent~~ Lender shall give ~~the~~ Borrower notice thereof and ~~thereupon~~ thereupon, (A) any Rate Selection Notice previously given by Borrower designating an Adjusted LIBOR Rate which has not commenced as of the date of such notice from Lender shall be deemed for all purposes hereof to be of no force and effect, as if never given, and (B) until Lender shall notify Borrower that the circumstances giving rise to such notice from Lender no longer exist, each Rate Selection Notice requesting an Adjusted LIBOR Rate shall be deemed a request for a CBFR Borrowing, and each outstanding LIBOR Borrowing then in effect shall be converted, without any notice to or from the Borrower, upon the termination of the Interest Period then in effect to ~~an Alternate Base Rate~~ a CBFR Borrowing. (d) ~~Each Credit Party, jointly and severally with all other Credit Parties,~~ Borrower hereby agrees to indemnify ~~the Agent and each of the Lenders~~ Lender against and hold ~~each of them~~ Lender harmless from any ~~Consequential Loss which it~~ actual loss or expense that Lender may sustain or incur ~~or sustain~~ as a consequence of ~~any prepayment~~ (~~mandatory or optional~~i) ~~or default by the Borrower in the payment of any principal amount of or interest on each Term Note or any~~ failure by ~~the~~ Borrower to timely convert or to borrow any LIBOR Borrowing after Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) failure by Borrower to make any prepayment after Borrower has given a notice thereof in accordance with the provisions of this Agreement or (iii) the making of a payment or prepayment of any LIBOR Borrowing, or the conversion of any LIBOR Borrowing, on a day that is not the ~~date specified~~ last day of an Interest Period with respect thereto, including without limitation, in each case, any such loss or expense arising from the liquidation or reemployment of funds obtained by ~~the Borrower. This agreement shall survive the payment of each Term Note. A certificate as to any additional amounts~~ Lender or from fees payable to terminate the ~~Agent or any Lender pursuant to this paragraph, detailing the basis therefore and submitted by the Agent or~~ deposits from which such ~~Lender to the Borrower shall be conclusive and binding upon the Credit Parties, absent manifest error, provided the calculation thereof is set forth in reasonable detail in such notice~~funds were obtained. (e) If ~~the~~ Borrower requests quotes of the Adjusted ~~LIBO~~ LIBOR Rate for different Interest Periods being considered for election by ~~the~~ Borrower, ~~the Agent~~ Lender will use reasonable efforts to provide such quotes to ~~the~~ Borrower promptly. However, all such quotes provided shall be representative only and shall not be binding on ~~the Agent or any~~ Lender, nor shall they be determinative, directly or indirectly, of any Adjusted ~~LIBO~~ LIBOR Rate or any component of any such rate, nor will ~~the~~ Borrower’s 's failure to receive or ~~the Agent’s~~ Lender's failure to provide any requested quote or quotes either (1) excuse or extend the time for performance of any obligation of ~~the~~ Borrower or for the exercise of any right, option or election of ~~the~~ Borrower or (2) impose any duty or liability on ~~the Agent or any~~ Lender. If ~~the~~ Borrower requests a list of the Business Days in any calendar month, ~~the Agent~~ Lender will use reasonable efforts to provide such list promptly. However, any such list provided shall be understood to identify only those days which ~~the Agent~~ Lender believes in good faith at the time such list is prepared will be the Business Days for such month. ~~The Agent~~ Lender shall not have any liability for any failure to provide, delay in providing, error or mistake in or omission from, any such quote or list. (f) With respect to ~~any~~ Lender having a LIBOR Lending Office which differs from its Domestic Lending Office, all ~~Term~~ Loans that are part of LIBOR Borrowings advanced by ~~such~~ Lender’s 's LIBOR Lending Office shall be deemed to have been made by ~~such~~ Lender and the obligation of ~~the~~ Borrower to repay such ~~Term~~ Loans shall nevertheless be to ~~such~~ Lender and shall be deemed held by ~~such Lender, to the extent of such portions of the Term Loan,~~ Lender for the account of ~~such~~ Lender’s 's LIBOR Lending Office. (g) Notwithstanding any provision of this Agreement to the contrary, each Lender shall be entitled to fund and maintain its funding of all or any part of the Term Loans hereunder in any manner it sees fit, it being understood, however, that for the purposes of this Agreement, all determinations hereunder shall be made as if such Lender had actually funded and maintained its portion of each LIBOR Borrowing during each Interest Period for the Term Loans through the purchase of deposits having a maturity corresponding to such Interest Period and bearing an interest rate equal to the LIBO Rate for such Interest Period. (h) The Borrower’s obligation to pay increased costs and Consequential Loss with regard to each LIBOR Borrowing as specified in this Section 2.7 hereof shall survive termination of this Agreement.

Appears in 1 contract

Samples: Credit Agreement (Natural Gas Services Group Inc)

Special Provisions Applicable to Libor Borrowings. (a) If, after the date of this Agreement, the adoption of any applicable Legal Requirement or any change in any applicable Legal Requirement or in the interpretation or administration thereof by any Governmental Authority or compliance by the ~~Agent or any~~ Lender with any request or directive (whether or not having the force of law) of any Governmental Authority shall at any time make it unlawful or impracticable for ~~any~~ the Lender to permit the establishment of or to maintain any LIBOR Borrowing, the commitment of the ~~Lenders~~ Lender to establish or maintain the Adjusted ~~LIBO~~ LIBOR Rate affected by such adoption or change shall forthwith be canceled, the ~~Agent or such~~ Lender shall use reasonable efforts to give the Borrower written notice thereof within a reasonable time after discovery of such adoption or change by the ~~Agent or such Lender, as applicable~~ Lender (it being agreed, however, that any failure to provide such notice to the Borrower shall not in any manner affect the rights under this Section 2.7(a) of the ~~Agent or any~~ Lender), and the Borrower shall forthwith, upon demand by the ~~Agent~~ Lender to the Borrower, (1) convert the Adjusted ~~LIBO~~ LIBOR Rate with respect to which such demand was made to the Alternate Base Rate; (2) pay all accrued and unpaid interest to date on the amount so converted; and (3) pay any amounts required to compensate the ~~Agent and the Lenders~~ Lender for any additional cost or expense which the ~~Agent or any~~ Lender may incur as a result of such adoption of or change in such Legal Requirement or in the interpretation or administration thereof and any Consequential Loss which the ~~Agent or any~~ Lender may incur as a result of such conversion to the Alternate Base Rate. If, when the Lender so notifies the Borrower, the Borrower has given a Rate Selection Notice specifying one or more borrowings of the type with respect to which such demand was made but the selected Interest Period or Interest Periods has not yet begun, such Rate Selection Notice shall be deemed to be of no force and effect, as if never made, and the balance of the Loan specified in such Rate Selection Notice shall bear interest at the Alternate Base Rate until a different available Interest Option shall be designated in accordance herewith. (b) If the adoption of any applicable Legal Requirement or any change in any applicable Legal Requirement or in the interpretation or administration thereof by any Governmental Authority or compliance by the ~~Agent or any~~ Lender with any request or directive (whether or not having the force of law) from any Governmental Authority shall at any time as a result of any portion of the principal balance of the ~~Term~~ Notes being maintained on the basis of the Adjusted ~~LIBO~~ LIBOR Rate: (1) impose, modify, increase or deem applicable any reserve requirement (excluding that portion of any reserve requirement included in the calculation of the Statutory Reserves), special deposit requirement or similar requirement (including state law requirements and Regulation D) imposed, modified, increased or deemed applicable by any Governmental Authority against assets held by the ~~Agent or any~~ Lender, or against deposits or accounts in or for the account of the ~~Agent or any~~ Lender, or against loans made by the ~~Agent or any~~ Lender, or against any other funds, obligations or other Property owned or held by the ~~Agent or any~~ Lender; or (2) impose on the ~~Agent or any~~ Lender any other materially restrictive or limiting condition regarding any LIBOR Borrowing; and the result of any of the foregoing is to increase the cost to ~~any~~ the Lender of agreeing to make or of making, renewing or maintaining such borrowing on the basis of the Adjusted ~~LIBO~~ LIBOR Rate, or reduce the amount of principal or interest received by ~~any~~ the Lender, then the ~~Agent or such~~ Lender shall use reasonable efforts to give the Borrower written notice thereof within a reasonable time after discovery of such adoption or change by the ~~Agent or such~~ Lender, ~~as applicable~~ (it being agreed, however, that any failure to provide such notice to the Borrower shall not in any manner affect the rights under this Section 2.7(b) of the ~~Agent or any~~ Lender), and, upon demand by ~~such~~ the Lender, the Borrower shall pay to ~~such~~ the Lender, from time to time as specified by ~~such~~ the Lender, additional amounts which shall compensate ~~such~~ the Lender for such increased cost or reduced amount. ~~Such~~ The Lender will promptly notify the Borrower in writing of any event, upon becoming actually aware of it, which will entitle ~~any~~ the Lender to additional amounts pursuant to this paragraph. ~~Such~~ The Lender’s determination of the amount of any such increased cost, increased reserve requirement or reduced amount shall be conclusive and binding, absent manifest error, provided that the calculation thereof and reason therefore is certified and is set forth in reasonable detail in such certification by such Lender. The Borrower shall have the right, if it receives from ~~any~~ the Lender any notice referred to in the preceding paragraph, upon three (3) Business Days’ notice to the ~~Agent~~Lender, either (i) to repay in full (but not in part) any borrowing with respect to which such notice was given, together with any accrued interest thereon, or (ii) to convert the Adjusted ~~LIBO~~ LIBOR Rate in effect with respect to such borrowing from ~~such~~ the Lender to the Alternate Base Rate; provided, that any such repayment or conversion shall be accompanied by payment of (x) the amount required to compensate the ~~appropriate~~ Lender ~~or Lenders~~ for the increased cost or reduced amount referred to in the preceding paragraph; (y) all accrued and unpaid interest to date on the amount so repaid or converted; and (z) any Consequential Loss which may be incurred as a result of such repayment or conversion. Additionally, if it receives from ~~any~~ the Lender any notice referred to in the preceding paragraph, the Borrower shall also have the corresponding rights in Section ~~10.16(c~~9.16(c). (c) If for any reason with respect to any Interest Period the ~~Agent~~ Lender shall have in good faith determined (which determination shall be conclusive and binding upon the Borrower) that: (1) the ~~Agent~~ Lender is unable through its customary general practices to determine a rate at which the ~~Agent~~ Lender is offered deposits in United States dollars by prime banks in the London interbank market, in the appropriate amount for the appropriate period, or by reason of circumstances affecting the London interbank market, generally, the ~~Agent~~ Lender is not being offered deposits for the applicable Interest Period and in an amount equal to the amount of the ~~Agent~~Lender’s pro-rata portion of any LIBOR Borrowing requested by the Borrower, or (2) the Adjusted ~~LIBO~~ LIBOR Rate will not adequately and fairly reflect the cost to ~~any~~ the Lender of making and maintaining any LIBOR Borrowing hereunder for any proposed Interest Period, then the ~~Agent~~ Lender shall give the Borrower notice thereof and ~~thereupon~~ thereupon, (A) any Rate Selection Notice previously given by the Borrower designating an Adjusted LIBOR Rate which has not commenced as of the date of such notice from the Lender shall be deemed for all purposes hereof to be of no force and effect, as if never given, and (B) until the circumstances giving rise to such notice from the Lender no longer exist, each Rate Selection Notice requesting an Adjusted LIBOR Rate shall be deemed a request for an Alternate Base Rate Borrowing, and each outstanding LIBOR Borrowing then in effect shall be converted, without any notice to or from the Borrower, upon the termination of the Interest Period then in effect to an Alternate Base Rate Borrowing. (d) Each Credit Party, jointly and severally with all other Credit Parties, hereby agrees to indemnify the ~~Agent and each of the Lenders~~ Lender against and hold each of them harmless from any Consequential Loss which it may incur or sustain as a consequence of any prepayment (mandatory or optional) or default by the Borrower in the payment of any principal amount of or interest on each ~~Term~~ Note or any failure by the Borrower to convert or to borrow any LIBOR Borrowing on the date specified by the Borrower. This agreement shall survive the payment of each ~~Term~~ Note. A certificate as to any additional amounts payable to the ~~Agent or any~~ Lender pursuant to this paragraph, detailing the basis therefore and submitted by the ~~Agent or such~~ Lender to the Borrower shall be conclusive and binding upon the Credit Parties, absent manifest error, provided the calculation thereof is set forth in reasonable detail in such notice. (e) If the Borrower requests quotes of the Adjusted ~~LIBO~~ LIBOR Rate for different Interest Periods being considered for election by the Borrower, the ~~Agent~~ Lender will use reasonable efforts to provide such quotes to the Borrower promptly. However, all such quotes provided shall be representative only and shall not be binding on the ~~Agent or any~~ Lender, nor shall they be determinative, directly or indirectly, of any Adjusted ~~LIBO~~ LIBOR Rate or any component of any such rate, nor will the Borrower’s failure to receive or the ~~Agent~~Lender’s failure to provide any requested quote or quotes either (1) excuse or extend the time for performance of any obligation of the Borrower or for the exercise of any right, option or election of the Borrower or (2) impose any duty or liability on the ~~Agent or any~~ Lender. If the Borrower requests a list of the Business Days in any calendar month, the ~~Agent~~ Lender will use reasonable efforts to provide such list promptly. However, any such list provided shall be understood to identify only those days which the ~~Agent~~ Lender believes in good faith at the time such list is prepared will be the Business Days for such month. The ~~Agent~~ Lender shall not have any liability for any failure to provide, delay in providing, error or mistake in or omission from, any such quote or list. (f) ~~With respect to any~~ If the Lender ~~having~~ has a LIBOR Lending Office which differs from its Domestic Lending Office, all ~~Term~~ Loans advanced by ~~such~~ the Lender’s LIBOR Lending Office shall be deemed to have been made by ~~such~~ the Lender and the obligation of the Borrower to repay such ~~Term Loans~~ Loan shall nevertheless be to ~~such~~ the Lender and shall be deemed held by such Lender, to the extent of such portions of the ~~Term~~ Loan, for the account of ~~such~~ the Lender’s LIBOR Lending Office. (g) Notwithstanding any provision of this Agreement to the contrary, ~~each~~ the Lender shall be entitled to fund and maintain its funding of all or any part of the ~~Term~~ Loans hereunder in any manner it sees fit, it being understood, however, that for the purposes of this Agreement, all determinations hereunder shall be made as if ~~such~~ the Lender had actually funded and maintained its portion of each LIBOR Borrowing during each Interest Period for the ~~Term~~ Loans through the purchase of deposits having a maturity corresponding to such Interest Period and bearing an interest rate equal to the ~~LIBO~~ LIBOR Rate for such Interest Period. (h) The Borrower’s obligation to pay increased costs and Consequential Loss with regard to each LIBOR Borrowing as specified in this Section 2.7 hereof shall survive termination of this Agreement.

Appears in 1 contract

Samples: Secured Term Loan Agreement (Animal Health International, Inc.)

Common use of Special Provisions Applicable to Libor Borrowings Clause in Contracts