Yield Protection and Illegality. (a) The Borrower shall be obligated to pay to the Lenders all Breakage Costs. (b) If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower, (i) any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by such Lender without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (A) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, at Borrower’s option, convert all Eurodollar Rate Loans of such Lender to a Base Rate Loan (the interest rate on which Base Rate Loan shall, if necessary to avoid such illegality, be determined by such Lender without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (B) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, such Lender shall during the period of such suspension compute the Base Rate without reference to the Eurodollar Rate component thereof until such Lender determines that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted. (c) If the Required Lenders determine that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (i) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (ii) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan, or (iii) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent at the direction of the Required Lenders will promptly so notify the Borrower. Thereafter, (A) the obligation of the Lenders to make or maintain a Eurodollar Rate Loan shall be suspended, and (B) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a borrowing of a Base Rate Loan in the amount specified therein. (d) If any Change in Law shall: (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Adjusted Eurodollar Rate), (ii) subject any Lender or recipient to any Taxes (other than Indemnified Taxes or Excluded Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or (iii) impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurodollar Rate Loans made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered. (e) If any Lender determines that any Change in Law affecting such Lender or its Lending Office or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the commitment of such Lender hereunder or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered. (f) A certificate of the applicable Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in Section 8(d) or 8(e) of this Section and delivered to the Borrower shall be conclusive absent error. The Borrower shall pay to applicable Lender the amount shown as due on any such certificate within 10 days after receipt thereof. (g) Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of Section 8(d) or 8(e) shall not constitute a waiver of the applicable Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate such Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of the Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine months period referred to above shall be extended to include the period of retroactive effect thereof). (h) If any Lender requests compensation under Sections 8(d) or 8(e), or the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender, or any Governmental Authority for the account of any Lender pursuant to Section 1(e)(1), or if any Lender gives a notice pursuant to Section 8(b), then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 8(d) or 8(e), as the case may be, in the future, or eliminate the need for the notice pursuant to Section 8(b), as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment. (i) All of the Borrower’s obligations under this Section 8 shall survive termination of this Agreement and repayment of the Obligations.
Appears in 2 contracts
Samples: Term Loan and Security Agreement (PBF Energy Inc.), Term Loan and Security Agreement (PBF Logistics LP)
Yield Protection and Illegality. (a) The Borrower shall be obligated to pay to the Lenders Lender all Breakage Costs.
(b) If any the Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such the Lender or its Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such the Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower, (i) any obligation of such the Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such the Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such the Lender shall, if necessary to avoid such illegality, be determined by such the Lender without reference to the Eurodollar Rate component of the Base Rate, in each case until such the Lender notifies the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (A) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent)Lender, prepay or, at Borrower’s optionif applicable, convert all any Eurodollar Rate Loans of such Lender Loan to a Base Rate Loan (the interest rate on which Base Rate Loan shall, if necessary to avoid such illegality, be determined by such the Lender without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such the Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such the Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (B) if such notice asserts the illegality of such the Lender determining or charging interest rates based upon the Eurodollar Rate, such the Lender shall during the period of such suspension compute the Base Rate without reference to the Eurodollar Rate component thereof until such the Lender determines that it is no longer illegal for such the Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
(c) If the Required Lenders determine Lender determines, in its sole discretion, that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (i) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (ii) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan, or (iii) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders the Lender of funding such Loan, the Administrative Agent at the direction of the Required Lenders Lender will promptly so notify the Borrower. Thereafter, (A) the obligation of the Lenders Lender to make or maintain a Eurodollar Rate Loan shall be suspended, and (B) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) Lender revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of a Eurodollar Rate Loans Loan or, failing that, will be deemed to have converted such request into a request for a borrowing of a Base Rate Loan in the amount specified therein.
(d) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Adjusted Eurodollar Rate)Lender,
(ii) subject any the Lender or recipient to any Taxes taxes (other than Indemnified Taxes taxes imposed on the Lender’s income, and franchise taxes imposed on the Lender by the jurisdiction under the laws of which the Lender is organized or Excluded Taxes any political subdivision thereof) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or
(iii) impose on any the Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurodollar Rate Loans made by such the Lender, and the result of any of the foregoing shall be to increase the cost to such the Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender (whether of principal, interest or any other amount) then, upon request of such the Lender, the Borrower will pay to such the Lender such additional amount or amounts as will compensate such the Lender for such additional costs incurred or reduction suffered.
(e) If any the Lender determines that any Change in Law affecting such the Lender or its Lending Office or such the Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such the Lender’s capital or on the capital of such the Lender’s holding company, if any, as a consequence of this Agreement, the commitment of such the Lender hereunder or the Loans made by such the Lender to a level below that which such the Lender or such the Lender’s holding company could have achieved but for such Change in Law (taking into consideration such the Lender’s policies and the policies of such the Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such the Lender such additional amount or amounts as will compensate such the Lender or such the Lender’s or the Lender’s holding company for any such reduction suffered.
(f) A certificate of the applicable Lender setting forth the amount or amounts necessary to compensate such the Lender or its holding company, as the case may be, as specified in Section 8(d) or 8(e) of this Section and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay to applicable the Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(g) Failure or delay on the part of any the Lender to demand compensation pursuant to the foregoing provisions of Section 8(d) or 8(e) shall not constitute a waiver of the applicable Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate such the Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such the Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of the Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine months nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
(h) If any Lender requests compensation under Sections 8(d) or 8(e), or the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender, or any Governmental Authority for the account of any Lender pursuant to Section 1(e)(1), or if any Lender gives a notice pursuant to Section 8(b), then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 8(d) or 8(e), as the case may be, in the future, or eliminate the need for the notice pursuant to Section 8(b), as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(i) All of the Borrower’s obligations under this Section 8 shall survive termination of this Agreement and repayment of the Obligations.
Appears in 2 contracts
Samples: Term Loan and Security Agreement (Susser Petroleum Partners LP), Term Loan and Security Agreement (Susser Petroleum Partners LP)
Yield Protection and Illegality. (a) The Borrower shall be obligated to pay Basis for Determining Interest Rate Inadequate or Unfair. If on or prior to the Lenders all Breakage Costs.
(b) If first day of any Lender determines that Rental Period or Interim Rental Period with respect to any Law has made it unlawful, Basic Rent or that any Governmental Authority has asserted that it is unlawful, for such Lender or its Lending Office to make, maintain or fund Loans whose interest Interim Rent which is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority basis of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower, LIBO Rate:
(i) any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and the Lessor determines that deposits in Dollars (ii) if such notice asserts in the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by such Lender without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (A) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agentapplicable amounts), prepay or, at Borrower’s option, convert all Eurodollar Rate Loans of such Lender to a Base Rate Loan (the interest rate on which Base Rate Loan shall, if necessary to avoid such illegality, be determined by such Lender without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (B) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, such Lender shall during the period of such suspension compute the Base Rate without reference to the Eurodollar Rate component thereof until such Lender determines that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
(c) If the Required Lenders determine that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (i) Dollar deposits are not being offered in the relevant market for such Rental Period or Interim Rental Period, or
(ii) the Lessor determines and give notice to banks the Lessee that, as a result of conditions in or generally affecting the London interbank eurodollar market market, the rates for Basic Rent or Interim Rent, as applicable, determined on the applicable amount and Interest Period basis of such Eurodollar Rate Loan, (ii) adequate and reasonable means do not exist for determining the Eurodollar LIBO Rate for any requested Interest Rental Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan, or (iii) the Eurodollar Rate for any requested Interest Interim Rental Period with respect to a proposed Eurodollar Rate Loan does will not adequately and fairly reflect the cost to the Lessor of making, funding or maintaining the Equipment Cost giving rise to such Lenders of funding Basic Rent or Interim Rent for any Equipment for such LoanRental Period or Interim Rental Period, the Administrative Agent at the direction of the Required Lenders will promptly Lessor shall forthwith so notify the Borrower. ThereafterLessee, whereupon,
(A) the Basic Rent or Interim Rent, as applicable, for such Equipment for such Rental Period or Interim Rental Period shall be determined on the basis of the Base Rate,
(B) the obligation of the Lenders Lessor to make fund any Equipment Cost having Basic Rent or maintain a Eurodollar Rate Loan shall be suspended, and (B) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a borrowing of a Base Rate Loan in the amount specified therein.
(d) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Adjusted Eurodollar Rate),
(ii) subject any Lender or recipient to any Taxes (other than Indemnified Taxes or Excluded Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or
(iii) impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurodollar Rate Loans made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
(e) If any Lender determines that any Change in Law affecting such Lender or its Lending Office or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the commitment of such Lender hereunder or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(f) A certificate of the applicable Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in Section 8(d) or 8(e) of this Section and delivered to the Borrower shall be conclusive absent error. The Borrower shall pay to applicable Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(g) Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of Section 8(d) or 8(e) shall not constitute a waiver of the applicable Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate such Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of the Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine months period referred to above shall be extended to include the period of retroactive effect thereof).
(h) If any Lender requests compensation under Sections 8(d) or 8(e), or the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender, or any Governmental Authority for the account of any Lender pursuant to Section 1(e)(1), or if any Lender gives a notice pursuant to Section 8(b), then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 8(d) or 8(e), as the case may be, in the future, or eliminate the need for the notice pursuant to Section 8(b)Interim Rent, as applicable, or to continue to accrue Basic Rent or Interim Rent, as applicable, based on the LIBO Rate shall be suspended until the Lessor shall notify the Lessee that the circumstances causing such suspension no longer exist, and
(C) unless the Lessee notifies the Lessor at least two (2) Business Days before the date of funding of any Equipment Cost for which notice has previously been given that it elects not to cause the related Equipment to be purchased on such date, Basic Rent or Interim Rent, as applicable, relating to such Equipment Cost shall be determined at a rate of interest equal to the Base Rate. Upon the written request of the Lessee, the Lessor shall negotiate with the Lessee for a reasonable period of time, as determined in the Lessor's discretion, to develop a substitute interest rate basis hereunder; provided, however, (x) the Lessor and the Lessee make no representation, warranty or covenant that any such agreement will be made, and (iiy) in each case, would not subject such Lender any relevant Basic Rent or Interim Rent shall continue to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with determined based on the Base Rate during the continuance of any such designation or assignment.
(i) All of negotiations and thereafter should no alternate interest rate be agreed to by the Borrower’s obligations under this Section 8 shall survive termination of this Agreement and repayment of the Obligations.necessary parties. 37
Appears in 1 contract
Samples: Master Lease Agreement (Flowers Industries Inc /Ga)
Yield Protection and Illegality. (a) The Borrower shall be obligated to pay to the Lenders Lender all Breakage Costs.
(b) If any the Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such the Lender or its Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such the Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower, (i) any obligation of such the Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such the Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such the Lender shall, if necessary to avoid such illegality, be determined by such the Lender without reference to the Eurodollar Rate component of the Base Rate, in each case until such the Lender notifies the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (A) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent)Lender, prepay or, at Borrower’s optionif applicable, convert all any Eurodollar Rate Loans of such Lender Loan to a Base Rate Loan (the interest rate on which Base Rate Loan shall, if necessary to avoid such illegality, be determined by such the Lender without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such the Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such the Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (B) if such notice asserts the illegality of such the Lender determining or charging interest rates based upon the Eurodollar Rate, such the Lender shall during the period of such suspension compute the Base Rate without reference to the Eurodollar Rate component thereof until such the Lender determines that it is no longer illegal for such the Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
(c) If the Required Lenders determine Lender determines, in its sole discretion, that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (i) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (ii) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan, or (iii) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders the Lender of funding such Loan, the Administrative Agent at the direction of the Required Lenders Lender will promptly so notify the Borrower. Thereafter, (A) the obligation of the Lenders Lender to make or maintain a Eurodollar Rate Loan shall be suspended, and (B) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) Lender revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of a Eurodollar Rate Loans Loan or, failing that, will be deemed to have converted such request into a request for a borrowing of a Base Rate Loan in the amount specified therein.
(d) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Adjusted Eurodollar Rate)Lender,
(ii) subject any the Lender or recipient to any Taxes taxes (other than Indemnified Taxes taxes imposed on the Lender’s income, and franchise taxes imposed on the Lender by the jurisdiction under the laws of which the Lender is organized or Excluded Taxes any political subdivision thereof) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or
(iii) impose on any the Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurodollar Rate Loans made by such the Lender, and the result of any of the foregoing shall be to increase the cost to such the Lender of making, converting to, continuing or maintaining any a Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender (whether of principal, interest or any other amount) then, upon request of such the Lender, the Borrower will pay to such the Lender such additional amount or amounts as will compensate such the Lender for such additional costs incurred or reduction suffered.
(e) If any the Lender determines that any Change in Law affecting such the Lender or its Lending Office or such the Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such the Lender’s capital or on the capital of such the Lender’s holding company, if any, as a consequence of this Agreement, the commitment of such the Lender hereunder or the Loans Loan made by such the Lender to a level below that which such the Lender or such the Lender’s holding company could have achieved but for such Change in Law (taking into consideration such the Lender’s policies and the policies of such the Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such the Lender such additional amount or amounts as will compensate such the Lender or such the Lender’s or the Lender’s holding company for any such reduction suffered.
(f) A certificate of the applicable Lender setting forth the amount or amounts necessary to compensate such the Lender or its holding company, as the case may be, as specified in Section 8(d) or 8(e) of this Section and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay to applicable the Lender the amount shown as due on any such certificate within 10 30 days after receipt thereof.
(g) Failure or delay on the part of any the Lender to demand compensation pursuant to the foregoing provisions of Section 8(d) or 8(e) shall not constitute a waiver of the applicable Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate such the Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine six months prior to the date that such the Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of the Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine months six-month period referred to above shall be extended to include the period of retroactive effect thereof).
(h) If any Lender requests compensation under Sections 8(d) or 8(e), or the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender, or any Governmental Authority for the account of any Lender pursuant to Section 1(e)(1), or if any Lender gives a notice pursuant to Section 8(b), then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 8(d) or 8(e), as the case may be, in the future, or eliminate the need for the notice pursuant to Section 8(b), as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(i) All of the Borrower’s obligations under this Section 8 shall survive termination of this Agreement and repayment of the Obligations.
Appears in 1 contract
Yield Protection and Illegality. (a) The Borrower shall be obligated to pay to the Lenders all Breakage Costs.
(b) If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower, (i) any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by such Lender without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (A) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, at Borrower’s option, convert all Eurodollar Rate Loans of such Lender to a Base Rate Loan (the interest rate on which Base Rate Loan shall, if necessary to avoid such illegality, be determined by such Lender without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (B) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, such Lender shall during the period of such suspension compute the Base Rate without reference to the Eurodollar Rate component thereof until such Lender determines that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
(c) If the Required Lenders determine that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (i) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (ii) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan, or (iii) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent at the direction of the Required Lenders will promptly so notify the Borrower. Thereafter, (A) the obligation of the Lenders to make or maintain a Eurodollar Rate Loan shall be suspended, and (B) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a borrowing of a Base Rate Loan in the amount specified therein.
(d) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Adjusted Eurodollar Rate),
(ii) subject any Lender or recipient to any Taxes (other than Indemnified Taxes or Excluded Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or
(iii) impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurodollar Rate Loans made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
(e) If any Lender determines that any Change in Law affecting such Lender or its Lending Office or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the commitment of such Lender hereunder or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(f) A certificate of the applicable Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in Section 8(d) or 8(e) of this Section and delivered to the Borrower shall be conclusive absent error. The Borrower shall pay to applicable Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(g) Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of Section 8(d) or 8(e) shall not constitute a waiver of the applicable Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate such Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of the Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine months period referred to above shall be extended to include the period of retroactive effect thereof).
(h) If any Lender requests compensation under Sections 8(d) or 8(e), or the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender, or any Governmental Authority for the account of any Lender pursuant to Section 1(e)(1), or if any Lender gives a notice pursuant to Section 8(b), then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 8(d) or 8(e), as the case may be, in the future, or eliminate the need for the notice pursuant to Section 8(b), as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(i) All of the Borrower’s obligations under this Section 8 shall survive termination of this Agreement and repayment of the Obligations.
Appears in 1 contract
Samples: Term Loan and Security Agreement (PBF Logistics LP)
Yield Protection and Illegality. (a) The Borrower shall be obligated to pay to the Lenders Lender all Breakage Costs.
(b) If any the Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such the Lender or its Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such the Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower, (i) any obligation of such the Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such the Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such the Lender shall, if necessary to avoid such illegality, be determined by such the Lender without reference to the Eurodollar Rate component of the Base Rate, in each case until such the Lender notifies the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (A) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent)Lender, prepay or, at Borrower’s optionif applicable, convert all any Eurodollar Rate Loans of such Lender Loan to a Base Rate Loan (the interest rate on which Base Rate Loan shall, if necessary to avoid such illegality, be determined by such the Lender without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such the Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such the Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (B) if such notice asserts the illegality of such the Lender determining or charging interest rates based upon the Eurodollar Rate, such the Lender shall during the period of such suspension compute the Base Rate without reference to the Eurodollar Rate component thereof until such the Lender determines that it is no longer illegal for such the Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
(c) If the Required Lenders determine Lender determines, in its sole discretion, that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (i) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (ii) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan, or (iii) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders the Lender of funding such Loan, the Administrative Agent at the direction of the Required Lenders Lender will promptly so notify the Borrower. Thereafter, (A) the obligation of the Lenders Lender to make or maintain a Eurodollar Rate Loan shall be suspended, and (B) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) Lender revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of a Eurodollar Rate Loans Loan or, failing that, will be deemed to have converted such request into a request for a borrowing of a Base Rate Loan in the amount specified therein.
(d) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Adjusted Eurodollar Rate)Lender,
(ii) subject any the Lender or recipient to any Taxes taxes (other than Indemnified Taxes taxes imposed on the Lender’s income, and franchise taxes imposed on the Lender by the jurisdiction under the laws of which the Lender is organized or Excluded Taxes any political subdivision thereof) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or
(iii) impose on any the Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurodollar Rate Loans made by such the Lender, and the result of any of the foregoing shall be to increase the cost to such the Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender (whether of principal, interest or any other amount) then, upon request of such the Lender, the Borrower will pay to such the Lender such additional amount or amounts as will compensate such the Lender for such additional costs incurred or reduction suffered.
(e) If any the Lender determines that any Change in Law affecting such the Lender or its Lending Office or such the Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such the Lender’s capital or on the capital of such the Lender’s holding company, if any, as a consequence of this Agreement, the commitment of such the Lender hereunder or the Loans Loan made by such the Lender to a level below that which such the Lender or such the Lender’s holding company could have achieved but for such Change in Law (taking into consideration such the Lender’s policies and the policies of such the Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such the Lender such additional amount or amounts as will compensate such the Lender or such the Lender’s or the Lender’s holding company for any such reduction suffered.
(f) A certificate of the applicable Lender setting forth the amount or amounts necessary to compensate such the Lender or its holding company, as the case may be, as specified in Section 8(d) or 8(e) of this Section and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay to applicable the Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(g) Failure or delay on the part of any the Lender to demand compensation pursuant to the foregoing provisions of Section 8(d) or 8(e) shall not constitute a waiver of the applicable Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate such the Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such the Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of the Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine months nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
(h) If any Lender requests compensation under Sections 8(d) or 8(e), or the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender, or any Governmental Authority for the account of any Lender pursuant to Section 1(e)(1), or if any Lender gives a notice pursuant to Section 8(b), then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 8(d) or 8(e), as the case may be, in the future, or eliminate the need for the notice pursuant to Section 8(b), as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(i) All of the Borrower’s obligations under this Section 8 shall survive termination of this Agreement and repayment of the Obligations.
Appears in 1 contract
Samples: Term Loan and Pledge Agreement (Susser Holdings CORP)
Yield Protection and Illegality. (a) The Borrower shall be obligated to pay Basis for Determining Rent Inadequate or Unfair. If on or prior to the Lenders all Breakage Costs.
(b) If first day of any Lender determines that Rental Period or Interim Rental Period with respect to any Law has made it unlawful, Basic Rent or that any Governmental Authority has asserted that it is unlawful, for such Lender or its Lending Office to make, maintain or fund Loans whose interest Interim Rent which is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority basis of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower, Adjusted LIBO Rate:
(i) any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and the Lessor determines that deposits in Dollars (ii) if such notice asserts in the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by such Lender without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (A) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agentapplicable amounts), prepay or, at Borrower’s option, convert all Eurodollar Rate Loans of such Lender to a Base Rate Loan (the interest rate on which Base Rate Loan shall, if necessary to avoid such illegality, be determined by such Lender without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (B) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, such Lender shall during the period of such suspension compute the Base Rate without reference to the Eurodollar Rate component thereof until such Lender determines that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
(c) If the Required Lenders determine that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (i) Dollar deposits are not being offered in the relevant market for such Rental Period or Interim Rental Period, or
(ii) the Lessor determines and gives notice to banks the Lessee that, as a result of conditions in or generally affecting the London interbank eurodollar market market, the rates or yield for Basic Rent or Interim Rent, as applicable, determined on the applicable amount and Interest Period basis of such Eurodollar Rate Loan, (ii) adequate and reasonable means do not exist for determining the Eurodollar LIBO Rate for any requested Interest Rental Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan, or (iii) the Eurodollar Rate for any requested Interest Interim Rental Period with respect to a proposed Eurodollar Rate Loan does will not adequately and fairly reflect the cost to the Lessor of making, funding or maintaining the Facility Cost giving rise to such Lenders of funding Basic Rent or Interim Rent for any Facility for such LoanRental Period or Interim Rental Period, the Administrative Agent at the direction of the Required Lenders will promptly Lessor shall forthwith so notify the Borrower. ThereafterLessee, whereupon,
(A) the Basic Rent or Interim Rent, as applicable, for such Facility for such Rental Period or Interim Rental Period shall be determined on the basis of the Base Rate,
(B) the obligation of the Lenders Lessor to make fund any Facility Cost having Basic Rent or maintain a Eurodollar Rate Loan shall be suspended, and (B) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a borrowing of a Base Rate Loan in the amount specified therein.
(d) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Adjusted Eurodollar Rate),
(ii) subject any Lender or recipient to any Taxes (other than Indemnified Taxes or Excluded Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or
(iii) impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurodollar Rate Loans made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
(e) If any Lender determines that any Change in Law affecting such Lender or its Lending Office or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the commitment of such Lender hereunder or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(f) A certificate of the applicable Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in Section 8(d) or 8(e) of this Section and delivered to the Borrower shall be conclusive absent error. The Borrower shall pay to applicable Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(g) Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of Section 8(d) or 8(e) shall not constitute a waiver of the applicable Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate such Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of the Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine months period referred to above shall be extended to include the period of retroactive effect thereof).
(h) If any Lender requests compensation under Sections 8(d) or 8(e), or the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender, or any Governmental Authority for the account of any Lender pursuant to Section 1(e)(1), or if any Lender gives a notice pursuant to Section 8(b), then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 8(d) or 8(e), as the case may be, in the future, or eliminate the need for the notice pursuant to Section 8(b)Interim Rent, as applicable, or to continue to accrue Basic Rent or Interim Rent, as applicable, based on the Adjusted LIBO Rate shall be suspended until the Lessor shall notify the Lessee that the circumstances causing such suspension no longer exist, and
(C) unless the Lessee notifies the Lessor at least 2 Business Days before the date of funding of any Facility Cost for which notice has previously been given that it elects not to cause the related Facility to be purchased on such date, Basic Rent or Interim Rent, as applicable, relating to such Facility Cost shall be determined at a rate of interest equal to the Base Rate. Upon the written request of the Lessee, the Lessor shall negotiate with the Lessee for a reasonable period of time, as determined in the Lessor's discretion, to develop a substitute interest rate basis hereunder; provided, however, (x) the Lessor and the Lessee make no representation, warranty or covenant that any such agreement will be made, and (iiy) in each case, would not subject such Lender any relevant Basic Rent or Interim Rent shall continue to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with determined based on the Base Rate during the continuance of any such designation or assignmentnegotiations and thereafter should no alternate interest rate be agreed to by the necessary parties.
(i) All of the Borrower’s obligations under this Section 8 shall survive termination of this Agreement and repayment of the Obligations.
Appears in 1 contract
Yield Protection and Illegality. (a) The Borrower shall be obligated to pay to the Lenders all Breakage Costs.
(bi) If any Lender Bank determines that the introduction of any Law Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for such Lender any Bank or its applicable Domestic Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank marketmake LIBOR Rate Loans, then, on notice thereof by such Lender Bank to the BorrowerBorrower through the Agent, (i) any obligation of such Lender that Bank to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar LIBOR Rate Loans shall be suspended, suspended until the Bank notifies the Agent and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by such Lender without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice.
(ii) If a Bank determines that it is unlawful to maintain any LIBOR Rate Loan, (A) the Borrower shall, upon its receipt of reasonable notice of such fact and demand from such Lender Bank (with a copy to the Administrative Agent), prepay or, at Borrower’s option, convert all Eurodollar in full such LIBOR Rate Loans of such Lender to a Base Rate Loan (the that Bank then outstanding, together with interest rate on which Base Rate Loan shall, if necessary to avoid such illegality, be determined by such Lender without reference to the Eurodollar Rate component of the Base Rateaccrued thereon and amounts required under Section 2.15(c), either on the last day of the Interest Period thereforthereof, if such Lender Bank may lawfully continue to maintain such Eurodollar LIBOR Rate Loans to such day, or immediately, if such Lender Bank may not lawfully continue to maintain such Eurodollar LIBOR Rate Loans and (B) if Loan. If the Borrower is required to so prepay any LIBOR Rate Loan, then concurrently with such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, such Lender shall during the period of such suspension compute the Base Rate without reference to the Eurodollar Rate component thereof until such Lender determines that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversionprepayment, the Borrower shall also pay accrued interest on borrow from the affected Bank, in the amount so prepaid of such repayment, a Reference Rate Loan.
(i) If any Bank determines that, due to either (A) the introduction of or convertedany change in the interpretation of any law or regulation or (B) the compliance by that Bank with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to such Bank of agreeing to make or making, funding or maintaining any LIBOR Rate Loans, then the Borrower shall be liable for, and shall from time to time, upon demand (with a copy of such demand to be sent to the Agent), pay to the Agent for the account of such Bank, additional amounts as are sufficient to compensate such Bank for such increased costs.
(ii) If any Bank shall have determined that (A) the introduction of any Capital Adequacy Regulation, (B) any change in any Capital Adequacy Regulation, (C) any change in the interpretation or administration of any Capital Adequacy Regulation by any central bank or other Governmental Authority charged with the interpretation or administration thereof, or (D) compliance by the Bank or any corporation controlling such Bank with any Capital Adequacy Regulation, affects or would affect the amount of capital required or expected to be maintained by such Bank or any corporation controlling the Bank and (taking into consideration such Bank's or such corporation's policies with respect to capital adequacy and such Bank's desired return on capital) determines that the amount of such capital is increased as a consequence of its Commitment[s], loans, credits or obligations under this Agreement, then, upon demand of such Bank to the Borrower through the Agent, the Borrower shall pay to the Bank, from time to time as specified by the Bank, additional amounts sufficient to compensate such Bank for such increase.
(c) If the Required Lenders determine that for The Borrower shall reimburse each Bank and hold each Bank harmless from any reason in connection with any request for loss or expense which such Bank may sustain or incur as a Eurodollar Rate Loan or a conversion to or continuation thereof that consequence of:
(i) Dollar deposits are not being offered the failure of the Borrower to banks in the London interbank eurodollar market for the applicable amount and Interest Period make on a timely basis any payment of such Eurodollar principal of any LIBOR Rate Loan, ;
(ii) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect failure of the Borrower to borrow, continue or convert a proposed Eurodollar Rate Loan after the Borrower has given (or in connection with an existing is deemed to have given) a Notice of Borrowing or proposed Base Rate Loan, or a Notice of Conversion/ Continuation;
(iii) the Eurodollar Rate for any requested Interest Period with respect to prepayment or other payment (including after acceleration thereof) of a proposed Eurodollar LIBOR Rate Loan does on a day that is not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent at the direction last day of the Required Lenders will promptly so notify relevant Interest Period; including any such loss or expense arising from the Borrower. Thereafter, (A) the obligation liquidation or reemployment of the Lenders funds obtained by it to make or maintain a Eurodollar Rate Loan shall be suspended, and (B) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of Eurodollar its LIBOR Rate Loans or, failing that, will be deemed or from fees payable to have converted terminate the deposits from which such request into a request for a borrowing of a Base Rate Loan in the amount specified thereinfunds were obtained.
(d) If any Change Any Bank claiming reimbursement or compensation under this Section 2.15 shall deliver to the Borrower (with a copy to the Agent) a certificate setting forth in Law shall:
(i) imposereasonable detail the amount payable to such Bank hereunder and the basis for such calculation, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for and such certificate shall be conclusive and binding on the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected Borrower in the Adjusted Eurodollar Rate),
(ii) subject any Lender or recipient to any Taxes (other than Indemnified Taxes or Excluded Taxes on its loans, loan principal, letters absence of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or
(iii) impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurodollar Rate Loans made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction sufferedmanifest error.
(e) If Without prejudice to the survival of any Lender determines that any Change in Law affecting such Lender or its Lending Office or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect other agreement of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this AgreementBorrower hereunder, the commitment agreements and obligations of such Lender hereunder or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction sufferedin this Section 2.15 shall survive the payment of all other Obligations.
(f) A certificate If any Bank is unable to make or continue a LIBOR Rate Loan due to any of the applicable Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified events described in Section 8(dsubsections (a) or 8(e(b) of this Section and delivered to the 2.15, Borrower shall be conclusive absent error. The Borrower shall pay entitled to applicable Lender prepay the amount shown as due on any such certificate Revolving Credit Loans in full and permanently reduce the Revolving Loan Commitment to zero ($0) within 10 90 days after receipt thereof.
(g) Failure or delay on the part of any Lender to receiving demand compensation for payment pursuant to the foregoing provisions of Section 8(dsubsection (a)(ii) or 8(e) shall not constitute a waiver of the applicable Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate such Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of the Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine months period referred to above shall be extended to include the period of retroactive effect thereof).
(h) If any Lender requests compensation under Sections 8(d) or 8(e), or the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender, or any Governmental Authority for the account of any Lender pursuant to Section 1(e)(1), or if any Lender gives a notice pursuant to Section 8(b), then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 8(d) or 8(eb)(i), as the case may be, in the futureof this Section 2.15, or eliminate the need for the notice pursuant to Section 8(b), as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees without having to pay the Early Termination Fee; provided that (x) such prepayment and early termination shall comply in all reasonable costs and expenses incurred by any Lender in connection other respects with any such designation or assignment.
(i) All of the Borrower’s obligations under this Section 8 shall survive termination all other terms of this Agreement and repayment (y) such prepayment in full shall be made by Borrower solely from the proceeds of a loan to Borrower from one or more financial institutions that are not, at the Obligationstime of such prepayment, subject to the event or circumstances that caused such Bank to have exercised the provisions of subsection (a)(ii) or (b)(i), as the case may be, of this Section 2.15.
Appears in 1 contract
Samples: Credit Agreement (Loehmanns Inc)
Yield Protection and Illegality. Section 5.01 Basis for Determining Yield Rate Inadequate or Unfair. ----------------------------------------------------- The Lessor shall give prompt notice to the Company and the Lease Participants of the applicable Yield determined by the Lessor for purposes of Sections 3.03(a) and (b). If on or prior to the first day of any Yield Period:
(a) The Borrower shall be obligated to pay to the Lenders all Breakage Costs.Lessor determines that deposits in Dollars (in the applicable amounts), are not being offered in the relevant market for such Yield Period, or
(b) If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its Lending Office to make, maintain or fund Loans whose interest is determined by reference the Majority Funding Parties determine and give notice to the Eurodollar Rate, Lessor that the rates or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions yield determined on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower, (i) any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component basis of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by such Lender without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (A) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, at Borrower’s option, convert all Eurodollar Rate Loans of such Lender to a Base Rate Loan (the interest rate on which Base Rate Loan shall, if necessary to avoid such illegality, be determined by such Lender without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (B) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, such Lender shall during the period of such suspension compute the Base Rate without reference to the Eurodollar Rate component thereof until such Lender determines that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
(c) If the Required Lenders determine that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (i) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (ii) adequate and reasonable means do not exist for determining the Eurodollar LIBO Rate for any requested Interest Yield Period with respect to a proposed Eurodollar Rate Loan for Lessor Advances or in connection with an existing or proposed Base Rate Loan, or (iii) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does Lease Participant Advances will not adequately and fairly reflect the cost to Majority Funding Parties of making, funding or maintaining their respective Lessor Advances or Lease Participant Advances for such Lenders of funding such LoanYield Period, the Administrative Agent at the direction of the Required Lenders will promptly Lessor shall forthwith so notify the Borrower. ThereafterCompany and the Lease Participants, whereupon,
(Ai) in the case of such notice from the Majority Funding Parties, each such Lessor Advance and Lease Participant Advance will automatically, on the last day of the then existing Yield Period, accrue Yield at a rate based upon the Base Rate plus the Applicable Margin as set forth in the Pricing Schedule,
(ii) the obligation of the Lenders Majority Funding Parties to make Lessor Advances or maintain a Eurodollar Rate Loan shall be suspendedLease Participant Advances, and (B) in as applicable, at the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Adjusted LIBO Rate shall be suspended, in each case suspended until the Administrative Agent (upon Lessor shall notify the instruction of Company and the Required Lenders) revokes Lease Participants that the circumstances causing such notice. Upon receipt of such noticesuspension no longer exist, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a borrowing of a Base Rate Loan in the amount specified therein.
(d) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Adjusted Eurodollar Rate),
(ii) subject any Lender or recipient to any Taxes (other than Indemnified Taxes or Excluded Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, orand
(iii) impose on any Lender unless the Company, as Acquisition/Construction Agent for the Lessor, or as Lessee under the London interbank market any other conditionLease, cost or expense (other than Taxes) affecting this Agreement or Eurodollar Rate Loans made by such Lender, and notifies the result Lessor at least 2 Business Days before the date of any of the foregoing shall be Lessor Advance for which Advance Notice has previously been given that it elects not to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan)effect a Lessor Advance, or to reduce the amount of any sum received or receivable by require such Lender (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
(e) If any Lender determines that any Change in Law affecting such Lender or its Lending Office or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the commitment of such Lender hereunder or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(f) A certificate of the applicable Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in Section 8(d) or 8(e) of this Section and delivered to the Borrower shall be conclusive absent error. The Borrower shall pay to applicable Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(g) Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of Section 8(d) or 8(e) shall not constitute a waiver of the applicable Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate such Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of the Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine months period referred to above shall be extended to include the period of retroactive effect thereof).
(h) If any Lender requests compensation under Sections 8(d) or 8(e), or the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender, or any Governmental Authority for the account of any Lender pursuant to Section 1(e)(1), or if any Lender gives a notice pursuant to Section 8(b), then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 8(d) or 8(e), as the case may be, in the future, or eliminate the need for the notice pursuant to Section 8(b)Lessor Advance, as applicable, on such date, such Lessor Advance (and the related Lease Participant Advances) shall instead be made at a Yield based upon the Base Rate plus the Applicable Margin as set forth in the Pricing Schedule. Upon the written request of the Company, as Acquisition/Construction Agent for the Lessor, or as Lessee under the Lease, the Lessor shall negotiate with the Company, as Acquisition/Construction Agent for the Lessor, or as Lessee under the Lease, and the relevant Lease Participants for a reasonable period of time, as determined in the Lessor's discretion, to develop a substitute interest rate basis hereunder; provided, however, (x) the Lessor, the Lease -------- Participants and the Company make no representation, warranty or covenant that any such agreement will be made, and (iiy) in each case, would not subject such Lender any relevant Lease Advances and related Lease Participant Advances shall continue to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with have Yield accrue thereon at the Base Rate during the continuance of any such designation or assignmentnegotiations and thereafter should no alternate interest rate be agreed to by the necessary parties.
(i) All of the Borrower’s obligations under this Section 8 shall survive termination of this Agreement and repayment of the Obligations.
Appears in 1 contract
Samples: Investment and Participation Agreement (Us Xpress Enterprises Inc)
Yield Protection and Illegality. Section 5.01 Basis for Determining Interest Rate Inadequate or ------------------------------------------------- Unfair. The Agent shall give prompt notice to the Lessor, the Company and the ------ Lenders of the applicable interest rate or LI Yield determined by the Agent for purposes of Sections 3.03(a) and (b). If on or prior to the first day of any Interest Period:
(a) The Borrower shall be obligated to pay to the Lenders all Breakage Costs.Agent determines that deposits in Dollars (in the applicable amounts), are not being offered in the relevant market for such Interest Period or LI Yield Period, or
(b) If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower, (i) any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by such Lender without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (A) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, at Borrower’s option, convert all Eurodollar Rate Loans of such Lender to a Base Rate Loan (the interest rate on which Base Rate Loan shall, if necessary to avoid such illegality, be determined by such Lender without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (B) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, such Lender shall during the period of such suspension compute the Base Rate without reference to the Eurodollar Rate component thereof until such Lender determines that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
(c) If the Required Lenders or the Lessor, respectively, determine and give notice to the Agent that for any reason in connection with any request for a Eurodollar Rate Loan the rates or a conversion to or continuation thereof that (i) Dollar deposits are not being offered to banks in yield determined on the London interbank eurodollar market for basis of the applicable amount and Interest Period of such Eurodollar Rate Loan, (ii) adequate and reasonable means do not exist for determining the Eurodollar LIBO Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan for Loans or in connection with an existing or proposed Base Rate Loan, or (iii) the Eurodollar Rate any LI Yield Period for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does LI Fundings will not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent at the direction of either the Required Lenders will promptly or the Lessor, respectively, of making, funding or maintaining their respective Loans or LI Fundings for such Interest Period or LI Yield Period, the Agent shall forthwith so notify the Borrower. ThereafterLessor, the Company and the Lenders, whereupon,
(Ai) in the case of such notice from the Required Lenders or the Lessor, each such Loan or LI Funding will automatically, on the last day of the then existing Interest Period accrue interest at a rate based upon the Base Rate plus the Applicable Margin as set forth in the Pricing Schedule.
(ii) the obligation of the Required Lenders or Lessor to make Loans or maintain a Eurodollar Rate Loan shall be suspended, and (B) in LI Fundings at the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Adjusted LIBO Rate shall be suspended, in each case suspended until the Administrative Agent (upon shall notify the instruction of the Required Lenders) revokes such notice. Upon receipt of such noticeLessor, the Borrower may revoke any pending request for a borrowing ofCompany and the Lenders that the circumstances causing such suspension no longer exist, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a borrowing of a Base Rate Loan in the amount specified therein.
(d) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Adjusted Eurodollar Rate),
(ii) subject any Lender or recipient to any Taxes (other than Indemnified Taxes or Excluded Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, orand
(iii) impose on any Lender or unless the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurodollar Rate Loans made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
(e) If any Lender determines that any Change in Law affecting such Lender or its Lending Office or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the commitment of such Lender hereunder or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(f) A certificate of the applicable Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in Section 8(d) or 8(e) of this Section and delivered to the Borrower shall be conclusive absent error. The Borrower shall pay to applicable Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(g) Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of Section 8(d) or 8(e) shall not constitute a waiver of the applicable Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate such Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of the Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine months period referred to above shall be extended to include the period of retroactive effect thereof).
(h) If any Lender requests compensation under Sections 8(d) or 8(e)Lessor, or the Borrower is required Company, for itself or as Acquisition/Construction Agent for the Lessor, notifies the Agent at least two (2) Business Days before the date of any Borrowing or Lessor Investment for which Advance Notice has previously been given that it elects not to pay any Indemnified Taxes effect a Borrowing or additional amounts to any LenderLessor Investment on such date, such Borrowing or Lessor Investment shall instead be made at a rate of interest, or any Governmental Authority for the account of any Lender pursuant to Section 1(e)(1), or if any Lender gives a notice pursuant to Section 8(b), then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 8(d) or 8(e), as the case may be, in the future, or eliminate the need for the notice pursuant to Section 8(b)LI Yield, as applicable, based upon the Base Rate plus the Applicable Margin as set forth in the Pricing Schedule. Upon the written request of the Lessor or the Company, for itself or as Acquisition/Construction Agent for the Lessor, the Agent shall negotiate with the Lessor or the Company, as Acquisition/Construction Agent for the Lessor, and the relevant Lenders for a reasonable period of time, as determined in the Agent's discretion, to develop a substitute interest rate basis hereunder; provided, however, (x) -------- the Agent, the Lenders, the Lessor and the Company make no representation, warranty or covenant that any such agreement will be made, and (iiy) in each case, would not subject such Lender any relevant Loans or LI Fundings shall continue to any unreimbursed cost have interest or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with yield accrue thereon at the Base Rate during the continuance of any such designation or assignmentnegotiations and thereafter should no alternate interest rate be agreed to by the necessary parties.
(i) All of the Borrower’s obligations under this Section 8 shall survive termination of this Agreement and repayment of the Obligations.
Appears in 1 contract
Samples: Credit and Investment Agreement (Scientific Atlanta Inc)
Yield Protection and Illegality. (a1) The Borrower shall be obligated to pay Basis for Determining Rent Inadequate or Unfair. If on or prior to the Lenders all Breakage Costs.
(b) If first day of any Lender determines that Rental Period or Interim Rental Period with respect to any Law has made it unlawful, Basic Rent or that any Governmental Authority has asserted that it is unlawful, for such Lender or its Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower, (i) any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on Interim Rent which is determined by reference to on the Eurodollar Rate component basis of the Base Adjusted LIBO Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by such Lender without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, :
(A1) the Borrower shall, upon demand from such Lender Lessor determines that deposits in Dollars (with a copy to in the Administrative Agentapplicable amounts), prepay or, at Borrower’s option, convert all Eurodollar Rate Loans of such Lender to a Base Rate Loan (the interest rate on which Base Rate Loan shall, if necessary to avoid such illegality, be determined by such Lender without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (B) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, such Lender shall during the period of such suspension compute the Base Rate without reference to the Eurodollar Rate component thereof until such Lender determines that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
(c) If the Required Lenders determine that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (i) Dollar deposits are not being offered in the relevant market for such Rental Period or Interim Rental Period, or
(2) the Lessor determines and gives notice to banks the Lessee that, as a result of conditions in or generally affecting the London interbank eurodollar market market, the rates or yield for Basic Rent or Interim Rent, as applicable, determined on the applicable amount and Interest Period basis of such Eurodollar Rate Loan, (ii) adequate and reasonable means do not exist for determining the Eurodollar LIBO Rate for any requested Interest Rental Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan, or (iii) the Eurodollar Rate for any requested Interest Interim Rental Period with respect to a proposed Eurodollar Rate Loan does will not adequately and fairly reflect the cost to the Lessor of making, funding or maintaining the Equipment Cost giving rise to such Lenders of funding Basic Rent or Interim Rent for any Equipment for such LoanRental Period or Interim Rental Period, the Administrative Agent at the direction of the Required Lenders will promptly Lessor shall forthwith so notify the Borrower. ThereafterLessee, whereupon,
(A1) the Basic Rent or Interim Rent, as applicable, for such Equipment for such Rental Period or Interim Rental Period shall be determined on the basis of the Base Rate,
(2) the obligation of the Lenders Lessor to make fund any Equipment Cost having Basic Rent or maintain a Eurodollar Rate Loan shall be suspended, and (B) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a borrowing of a Base Rate Loan in the amount specified therein.
(d) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Adjusted Eurodollar Rate),
(ii) subject any Lender or recipient to any Taxes (other than Indemnified Taxes or Excluded Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or
(iii) impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurodollar Rate Loans made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
(e) If any Lender determines that any Change in Law affecting such Lender or its Lending Office or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the commitment of such Lender hereunder or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(f) A certificate of the applicable Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in Section 8(d) or 8(e) of this Section and delivered to the Borrower shall be conclusive absent error. The Borrower shall pay to applicable Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(g) Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of Section 8(d) or 8(e) shall not constitute a waiver of the applicable Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate such Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of the Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine months period referred to above shall be extended to include the period of retroactive effect thereof).
(h) If any Lender requests compensation under Sections 8(d) or 8(e), or the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender, or any Governmental Authority for the account of any Lender pursuant to Section 1(e)(1), or if any Lender gives a notice pursuant to Section 8(b), then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 8(d) or 8(e), as the case may be, in the future, or eliminate the need for the notice pursuant to Section 8(b)Interim Rent, as applicable, or to continue to accrue Basic Rent or Interim Rent, as applicable, based on the Adjusted LIBO Rate shall be suspended until the Lessor shall notify the Lessee that the circumstances causing such suspension no longer exist, and
(3) unless the Lessee notifies the Lessor at least 2 Business Days before the date of funding of any Equipment Cost for which notice has previously been given that it elects not to cause the related Equipment to be purchased on such date, Basic Rent or Interim Rent, as applicable, relating to such Equipment Cost shall be determined at a rate of interest equal to the Base Rate. Upon the written request of the Lessee, the Lessor shall negotiate with the Lessee for a reasonable period of time, as determined in the Lessor's discretion, to develop a substitute interest rate basis hereunder; provided, however, (x) the Lessor and the Lessee make no representation, warranty or covenant that any such agreement will be made, and (iiy) in each case, would not subject such Lender any relevant Basic Rent or Interim Rent shall continue to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with determined based on the Base Rate during the continuance of any such designation or assignmentnegotiations and thereafter should no alternate interest rate be agreed to by the necessary parties.
(i) All of the Borrower’s obligations under this Section 8 shall survive termination of this Agreement and repayment of the Obligations.
Appears in 1 contract
Samples: Master Lease Agreement (Coca Cola Bottling Co Consolidated /De/)
