Changed Circumstances. In the event that: (a) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or (b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that (i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not having the force of law); or (ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative index.
Appears in 2 contracts
Sources: Credit Agreement (American Skiing Co /Me), Credit Agreement (American Skiing Co /Me)
Changed Circumstances. In the event that:
(a) on If the introduction of or any change in or in the interpretation of (in each case, after the date on which hereof) any law or regulation makes it unlawful, or any Governmental Authority asserts, after the Applicable LIBOR date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make Eurodollar Rate would otherwise be set Loans or to fund or maintain Eurodollar Rate Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall have determined notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Loans for any subsequent Interest Period or in good faith (which determination connection with any subsequent conversion of any Loan shall be final suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and conclusive) the Borrower shall forthwith prepay in full all Eurodollar Rate Loans then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three Business Days after such notice from the Agent, requests the conversion of all Eurodollar Rate Loans then outstanding into Prime Rate Loans; PROVIDED, that adequate and fair means do if the date of such repayment or proposed conversion is not exist for ascertaining the LIBOR Ratelast day of the Interest Period applicable to such Eurodollar Rate Loan, as applicable; orthe Borrower shall also pay any amount due pursuant to SECTION 3.10.
(b) at any time If the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) shall, at least one Business Day before the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive date of any such Governmental Authority (whether requested Revolving Credit Loan or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a Eurodollar Rate Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, a PENDING LOAN), notify the Borrower that the Eurodollar Rate will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or that the Interbank Offered Rate is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select Eurodollar Rate Loan for U.S. dollar deposits such Pending Loan, any subsequent Revolving Credit Loan or in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers Borrower that the circumstances giving rise to causing such notice suspension no longer applyexist, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option each Pending Loan and each such subsequent Loan requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force made, continued or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, converted shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexor continued as or converted into a Prime Rate Loan.
Appears in 2 contracts
Sources: Loan and Security Agreement (Burke Industries Inc /Ca/), Loan and Security Agreement (Burke Industries Inc /Ca/)
Changed Circumstances. In (a) If prior to the event thatfirst day of any Interest Period:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the Administrative Agent shall have determined in good faith (which determination shall be final conclusive and conclusivebinding upon the Borrower) that that, by reason of circumstances affecting the relevant market, adequate and fair reasonable means do not exist for ascertaining Adjusted Term SOFR or the LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with Eurocurrency Rate for any applicable law or governmental regulationCurrency for such Interest Period, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not having the force of law); or
(ii) the LIBOR Administrative Agent shall have received notice from the Majority Lenders or the Majority Multicurrency Lenders, as the case may be, that Adjusted Term SOFR or the Eurocurrency Rate shall no longer represent for any applicable Currency determined or to be determined for such Interest Period will not adequately and fairly reflect the effective cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Loans during such Interest Period, the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the Lenders for U.S. dollar deposits as soon as practicable thereafter. If such notice is given (w) any SOFR Loans or Multicurrency Loans, as the case may be, in the London interbank marketaffected Currency requested to be made on the first day of such Interest Period shall be made as ABR Loans (in the case of Multicurrency Loans, in an amount equal to the Dollar Equivalent of such requested Multicurrency Loans), provided, that, notwithstanding the provisions of subsection 2.2 or 2.14, the Borrower may cancel the request for such SOFR Loan or Multicurrency Loan, as the case may be, by written notice to the Administrative Agent one Business Day prior to the first day of such Interest Period and the Borrower shall not be subject to any liability pursuant to subsection 3.11 with respect to such cancelled request, (x) if the affected Currency is Dollars, any Loans that were to have been converted on the first day of such Interest Period to SOFR Loans shall be continued as ABR Loans, (y) if the affected Currency is Dollars, any outstanding SOFR Loans shall be converted, on the first day of such Interest Period, to ABR Loans and (z) any Multicurrency Loans in the affected Currency to which such Interest Period relates shall be repaid on the first day of such Interest Period. Until such notice has been withdrawn by the Administrative Agent, no further SOFR Loans or Multicurrency Loans in the applicable for deposits affected Currency shall be made or continued as such, nor (if the affected Currency is Dollars) shall the Borrower have the right to convert ABR Loans to SOFR Loans.
(i) Notwithstanding anything to the contrary herein or in which they regularly participate; any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election with respect to any applicable then-current Benchmark, and in such eventas applicable, the Administrative Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent Borrower may amend this Agreement to allow election by the Borrowers of replace such Benchmark with one or more Benchmark Replacements (it being understood that all amounts denominated in a LIBOR Pricing Option given currency for which a Benchmark is being replaced shall be suspendedsubject to the same Benchmark Replacement). If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice Any such amendment with respect to a LIBOR Pricing Option, but Benchmark Transition Event will become effective at 5:00 p.m. on the LIBOR Pricing Option requested therein fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not yet gone into effectreceived, by such Pricing Notice shall automatically time, written notice of objection to such amendment from Lenders comprising the Majority Lenders. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Majority Lenders have delivered to the Administrative Agent written notice that such Majority Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 3.6(b)(i) will occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right (in consultation with the Borrower) to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iii) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement and (iv) the commencement or conclusion of any Benchmark Unavailability Period. The Administrative Agent will promptly notify the Borrower of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 3.6(b)(iv). Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 3.6(b), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 3.6(b).
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (A) if any then-current Benchmark is a term rate (including the Term SOFR Reference Rate, EURIBOR, BBSY or CDOR) and either (1) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (2) the regulatory supervisor for the administrator of such ▇▇▇▇▇▇▇▇▇ has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a given Benchmark, (A) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans or Multicurrency Loans, in each case, to be made, converted or continued during any Benchmark Unavailability Period denominated in the applicable Currency and, failing that, (I) in the case of any request for any affected SOFR Loans, if applicable, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to ABR Loans in the amount specified therein and (II) in the case of any request for any affected Multicurrency Loan, then such request shall be withdrawn ineffective and (B)(I) any outstanding affected SOFR Loans, if applicable, will be deemed to have been converted into ABR Loans at the end of the applicable Interest Period and (II) any outstanding affected Multicurrency Loans, at the Borrower’s election, shall either (1) be converted into ABR Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of such Available Foreign Currency) at the end of the applicable Interest Period or (2) be prepaid in full at the end of the applicable Interest Period; provided that if no force or effectelection is made by the Borrower by the earlier of (x) the date that is three (3) Business Days after receipt by the Borrower of such notice and (y) the last day of the current Interest Period for the applicable Multicurrency Loan, the Borrower shall be deemed to have elected clause (1) above. Upon any such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)prepayment or conversion, the LIBOR Pricing Option Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 3.11. During a Benchmark Unavailability Period with respect to all LIBOR Rate Loans shall be terminated. In the event any Benchmark or at any time that the LIBOR Pricing Option a tenor for any then-current Benchmark is suspended in accordance with the foregoing provisions for more than sixty (60) daysnot an Available Tenor, the Borrowers may request component of ABR based upon the then-current Benchmark that is the Lenders propose an indexsubject of such Benchmark Unavailability Period or such tenor for such Benchmark, and the spread above such indexas applicable, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall will not be an index used in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The any determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexBase Rate.
Appears in 2 contracts
Sources: Credit Agreement (Boston Scientific Corp), Credit Agreement (Boston Scientific Corp)
Changed Circumstances. In (a) The Lender may give the event thatBorrower notice of the occurrence of the following:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent The Lender shall have determined in good faith (which determination shall be final and conclusive) on any day on which the rate for a Eurodollar Loan would otherwise be set, that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; orsuch rate.
(bii) at any time the Agent The Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation The continuation of the LIBOR Pricing Option or conversion of any Revolving Credit Loan to a Eurodollar Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank applicable market or (B) compliance by any the Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or.
(iiB) The indices on which the LIBOR Rate interest rates for Eurodollar Loans are based shall no longer represent the effective cost to the Lenders Lender for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participate; participates.
(b) In the event that the Lender gives the Borrower notice of an occurrence described in Section 2-21(a), then, and in such event, until the Agent shall so notify the Borrowers thereof. Until the Agent Lender notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the :
(i) The obligation of the Lenders and Lender to make Eurodollar Loans of the Agent type affected by such changed circumstances or to allow election by permit the Borrowers of a LIBOR Pricing Option Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended. If at .
(ii) Any notice which the time the Agent so notifies the Borrowers, the Borrowers have previously Borrower had given the Agent a Pricing Notice Lender with respect to a LIBOR Pricing Optionany Eurodollar Loan, but the LIBOR Pricing Option requested therein time for action with respect to which has not yet gone into effectoccurred prior to the Lender’s having given notice pursuant to Section 2-21(a), such Pricing Notice shall automatically be deemed to be withdrawn a request for a Base Rate Loan.
(c) Notwithstanding the foregoing, the Lender agrees to use its reasonable efforts (consistent with its internal policy and be of no force or effect. Upon legal and regulatory restrictions and so long as such date as shall be specified in such notice (which shall efforts would not be earlier than disadvantageous to it, in its reasonable discretion, in any legal, economic or regulatory manner) to designate a different lending office if the date making of such notice is given), designation would allow the LIBOR Pricing Option with respect Lender or its lending office to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative continue to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexmake Eurodollar Loans.
Appears in 2 contracts
Sources: Loan and Security Agreement (Aeropostale Inc), Loan and Security Agreement (Aeropostale Inc)
Changed Circumstances. In the event that:
(a) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market market, or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall forthwith so notify the Borrowers Borrower thereof. Until the Agent notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers Borrower of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the BorrowersBorrower, the Borrowers have Borrower has previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, terminated and the spread above such index, for determining Borrower shall pay all interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree due on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement LIBOR Rate Loans and any particular requirements relating amounts required to such alternative indexbe paid pursuant to Section 4.3.
Appears in 2 contracts
Sources: Credit Agreement (Boston Celtics Limited Partnership), Credit Agreement (Boston Celtics Limited Partnership Ii /De/)
Changed Circumstances. In the event that:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent Bank shall have reasonably determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR RateBase, as applicable; or
(bii) at any time the Agent Bank shall have reasonably determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of the or conversion of any Loan to a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank market or (B2) compliance by any Lender the Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (governmental authority, whether or not having the force of lawlaw (in any such case, a "Legal Impediment"); or
(iiB) the LIBOR Rate shall no longer represent the effective cost to the Lenders Bank for United States dollar deposits in the interbank market for deposits in which it regularly participates; or
(C) that U.S. dollar deposits in immediately available funds in an amount approximately equal to the London interbank market, as applicable outstanding principal balance of the Line of Credit are not readily available to the Bank's Eurodollar Office for deposits in which they regularly participatedelivery on the first day of any Interest Period; then, and in any such event, the Agent Bank shall forthwith so notify the Borrowers thereofCompany by facsimile notice at least one (1) day prior to (i) the date that the LIBOR Rate is to be set, (ii) the commencement date of the applicable Interest Period or (iii) the occurrence of the applicable event, and the Interest Rate shall become the Prime Rate and shall remain the Prime Rate until the Bank determines and so notifies the Company that the circumstances giving rise to such notice no longer apply. Until the Agent Bank notifies the Borrowers Company that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent Bank to allow election selection by the Borrowers Company of a LIBOR Pricing Option Loan (during the occurrence of such circumstances, referred to as "Affected Loans") shall be suspended. If at the time the Agent Bank so notifies the BorrowersCompany, the Borrowers have Company has previously given the Agent Bank a Pricing Notice of Borrowing or a Notice of Continuation or Conversion with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein such borrowing or conversion has not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be the Company may only borrow or convert to a Prime Rate Loan. If as a result of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)a Legal Impediment, the Bank shall incur Breakage Costs in converting from a LIBOR Pricing Option with respect to Loan, then the Company shall pay all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative Breakage Costs to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexBank promptly upon its demand therefor for its account.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Meditrust), Revolving Credit Agreement (Meditrust Corp)
Changed Circumstances. In the event that:
(a) on any date on which the Applicable Circumstances Affecting LIBOR Rate would Availability and Alternative Currency Availability. Unless and until a Replacement Rate is implemented in accordance with clause (c) below, in connection with any request for a LIBOR Rate Loan or a conversion to or continuation thereof or otherwise be set in connection with any request for a LIBOR Rate Loan, an Alternative Currency Revolving Credit Loan or a conversion to or continuation thereof, if for any reason (i) the Administrative Agent shall have determined in good faith reasonably determine (which determination shall be final conclusive and conclusivebinding absent manifest error) that deposits are not being offered to banks in the applicable interbank market (including, without limitation, the London interbank Eurodollar market) for the applicable amount and Interest Period of such Loan, (ii) the Administrative Agent shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that reasonable and adequate and fair means do not exist for ascertaining the LIBOR RateRate for the Interest Period with respect to a proposed LIBOR Rate Loan, as applicable; or
(biii) at a fundamental change has occurred in the foreign exchange or interbank markets with respect to any time Alternative Currency (including, without limitation, changes in national or international financial, political or economic conditions or currency exchange rates or exchange controls), (iv) it has become otherwise materially impractical for the Agent Lenders to make any Alternative Currency Revolving Credit Loans or (v) the Required Lenders shall have determined in good faith determine (which determination shall be final conclusive and conclusivebinding absent manifest error) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent does not adequately and fairly reflect the effective cost to such Lenders of making or maintaining such Loans during such Interest Period, then the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Administrative Agent shall so notify promptly give notice thereof to the Borrowers thereofBorrower. Until Thereafter, until the Administrative Agent notifies the Borrowers Borrower that the such circumstances giving rise to such notice no longer applyexist, the obligation of the Lenders to make LIBOR Rate Loans and the Agent right of the Borrower to allow election by the Borrowers of convert any Loan to or continue any Loan as a LIBOR Pricing Option Rate Loan or an Alternative Currency Revolving Credit Loan, as applicable, shall be suspended. If at , and:
(A) in the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be case of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended denominated in accordance with the foregoing provisions for more than sixty (60) daysDollars, the Borrowers may request that Borrower shall either (1) repay in full (or cause to be repaid in full) the Lenders propose an indexthen outstanding principal amount of each such LIBOR Rate Loan, and the spread above such indextogether with accrued interest thereon (subject to Section 4.1(d)), for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination last day of the spread above then current Interest Period applicable to such index, shall be made by agreement LIBOR Rate Loan or (2) convert the then outstanding principal amount of all each such LIBOR Rate Loan to a Base Rate Loan as of the Lenders last day of such Interest Period; and
(B) in their sole discretion. In the event case of LIBOR Rate Loans denominated in an Alternative Currency, the Borrowers and Borrower shall either (1) repay in full (or cause to be repaid in full) the Lenders agree then outstanding principal amount of each such LIBOR Rate Loan, together with accrued interest thereon (subject to Section 4.1(d)), on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating the last day of the then current Interest Period applicable to such alternative indexLIBOR Rate Loan or (2) convert the then outstanding principal amount of each such LIBOR Rate Loan to a Base Rate Loan denominated in Dollars as of the last day of such Interest Period.
Appears in 1 contract
Sources: Credit Agreement (Owens Corning)
Changed Circumstances. (a) In the event that:
(ai) on any date on which the Applicable Adjusted LIBOR Rate would otherwise be set the set, Agent or any Bank shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR London Interbank Offered Rate, as applicable; or
(bii) at any time the Agent or any Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of the or conversion of any Loan to a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank eurodollar market or the market for certificates of deposit maintained by dealers in San Francisco of recognized standing or (B2) compliance by any Lender Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(iiB) the Adjusted LIBOR Rate shall no longer represent the effective cost to the Lenders any Bank for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participate; then, and in such event, the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option participates;
(a) (herein called "Affected Loans") shall be suspended. If at the time the Agent so notifies the BorrowersBorrower, the Borrowers have Borrower has previously given the Agent a Pricing Notice of Borrowing or Conversion with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein has such Loans have not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be Borrower may borrow Loans of no force a non-affected type by giving a substitute Notice of Borrowing or effectConversion pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)) Borrower shall, the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that outstanding Affected Loans, prepay the LIBOR Pricing Option is suspended in accordance same, together with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement thereon and any particular requirements relating amounts required to such alternative index.be paid pursuant to
Appears in 1 contract
Changed Circumstances. In the event that:: ---------------------
(a) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the a LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market market, or (B) compliance by any Lender the Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders Bank for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they it regularly participateparticipates; then, and in such event, the Agent Bank shall forthwith so notify the Borrowers Company thereof. Until the Agent Bank notifies the Borrowers Company that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent Bank to allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Agent Bank so notifies the BorrowersCompany, the Borrowers have Company has previously given the Agent Bank a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon If circumstances described in clause (b)(i)(B) arise, then upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all any new requests for LIBOR Rate Loans shall be terminated. In , but any existing LIBOR Rate Loans may continue to be maintained through the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination end of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexapplicable Interest Period.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) on On any date day on which the Applicable rate for a LIBOR Rate Loan would otherwise be set set, the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicableeither such rate; or
(b) at At any time that the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the implementation continuation of or conversion of any Revolving Credit Loan or any portion of the Term Loan or any portion of the Acquisition Term Loan to a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank applicable market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not governmental authority having the force of law); or
(ii) the indices on which the interest rates for LIBOR Rate Loans shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they regularly participate; then, and in any such event, the Administrative Agent shall forthwith so notify the Borrowers Lead Borrower thereof. Until the Administrative Agent notifies the Borrowers Lead Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and to make LIBOR Loans of the Agent type affected by such changed circumstances or to allow election by permit the Borrowers Lead Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans or any portion of a LIBOR Pricing Option the Term Loan or any portion of the Acquisition Term Loan shall be suspended. If at the time the Administrative Agent so notifies the BorrowersLead Borrower, the Borrowers have Lead Borrower has previously given the Administrative Agent a Pricing Renewal/Conversion Notice with respect to a one or more LIBOR Pricing OptionLoans, but the such LIBOR Pricing Option requested therein has Loans have not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be of no force or effectthe Lead Borrower may only borrow Base Margin Loans and shall furnish a substitute Renewal/Conversion Notice. Upon such date as shall be specified in such notice (the expiration of the Interest Period for any LIBOR Loan which shall not be earlier than is outstanding on the date of such notice is given)notification, the amount of such LIBOR Pricing Option with respect to all LIBOR Rate Loans Loan shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexthereafter constitute a Base Margin Loan.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) on any date on which the Applicable LIBOR Eurodollar Rate would otherwise be set set, the Agent or any Lender shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Eurodollar Rate, as applicable; or
(b) at any time the Agent or any Lender shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the LIBOR Eurodollar Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(ii) the LIBOR Eurodollar Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall forthwith so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Eurodollar Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have New England Audio has previously given the Agent a Eurodollar Pricing Notice with respect to a LIBOR Eurodollar Pricing Option, but the LIBOR Eurodollar Pricing Option requested therein has not yet gone into effect, such Eurodollar Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Eurodollar Pricing Option with respect to all LIBOR Eurodollar Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, terminated and the spread above such indexBorrowers, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks jointly and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such indexseverally, shall be made by agreement of pay all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree interest due on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement Eurodollar Rate Loans and any particular requirements relating amounts required to such alternative indexbe paid pursuant to Section 4.3.
Appears in 1 contract
Sources: Credit Agreement (Tweeter Home Entertainment Group Inc)
Changed Circumstances. (a) In the event that:
(ai) on any date on which the Applicable LIBOR Eurodollar Rate would otherwise be set the Agent set, Bank of Boston shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair reasonable means do not exist for ascertaining the LIBOR Eurodollar Rate, as applicable; or
(bii) at any time the Majority Lenders shall notify the Agent shall that they have determined in good faith (which determination shall be final and conclusive) thatthat the Eurodollar Rate shall no longer represent the effective cost to the Majority Lenders of making or maintaining Eurodollar Advances to be made by them, or
(iiii) any Lender shall notify the implementation Agent that it has determined in good faith (which determination shall be final and conclusive) that the making or continuation of the LIBOR Pricing Option or conversion of any Advance of such Lender to a Eurodollar Advance has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank Eurodollar market or (B) compliance by any such Lender in good faith with any applicable law or governmental regulation, guideline or order Applicable Law or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in any such event, the Agent shall forthwith so notify the Borrowers thereof. Borrower thereof and:
(A) Until the Agent notifies the Borrowers Borrower that the circumstances giving rise to such any notice given pursuant to SECTION 3.10(A) no longer apply, the obligation of the Lenders and the Agent to allow election selection by the Borrowers Borrower of a LIBOR Pricing Option Eurodollar Advances shall be suspended. If at the time the Agent so notifies the BorrowersBorrower, the Borrowers have Borrower has previously given the Agent a Pricing Notice of Borrowing or a Notice of Conversion or Continuation with respect to one or more Borrowings to be made as or to be converted into or continued as Borrowings comprised of Eurodollar Advances (each, a LIBOR Pricing Option, "Pending Borrowing") but the LIBOR Pricing Option requested therein has such Pending Borrowings have not yet gone into effectbeen so made, converted or continued, each such Pricing Notice shall automatically be deemed to be withdrawn and be an election by the Borrower of no force or effect. Upon Borrowings comprised of Base Rate Advances.
(B) On such date as shall be is specified in such any notice to the Borrower from the Agent pursuant to SECTION 3.10(A) (which date shall not be earlier than the date such notice is given), the LIBOR Pricing Option Borrower shall prepay the outstanding principal amount of all Eurodollar Advances, together with interest thereon and any amount required to be paid pursuant to SECTION 3.11, or convert all such outstanding Eurodollar Advances into Base Rate Advances by giving a Notice of Conversion or Continuation pursuant to SECTION 3.7(B).
(b) In case of any change in law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects any Lender to any tax with respect to all LIBOR Rate Loans shall be terminated. In payments of principal or interest or any other amounts payable hereunder by the event that Borrower or otherwise with respect to the LIBOR Pricing Option is suspended transactions contemplated hereby (except for taxes on the overall net income of such Lender imposed by the United States of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in accordance or for the account of, or loans by, any Lender (other than such requirements as are already provided for in SECTION 3.1(B)(II)), or
(iii) imposes upon any Lender any other condition with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an indexrespect to its performance under this Agreement, and the spread above result of any of the foregoing is to increase the cost to such indexLender, for determining interest on reduce the Loans income receivable by such Lender or impose any expense upon such Lender with respect to any Advances, such Lender shall notify the Agent and the Borrower thereof. The Borrower agrees to pay to such Lender the amount of such increase in cost, reduction in income or additional expense as an alternative and when such cost, reduction or expense is incurred or determined, upon presentation by such Lender of a statement of the amount and setting forth such Lender's calculation thereof, which statement shall be deemed true and correct absent manifest error, PROVIDED, that no Lender shall be entitled to charge nor shall the Borrower be obligated to pay any such amount relating to a period more than 90 days prior to the LIBOR Ratedate on which such statement is presented.
(c) If any Lender determines that (i) the adoption of or change in, in each case after the date hereof, any law, rule, regulation or guideline regarding capital requirements for banks or bank holding companies, or any change after the date hereof in the interpretation or application thereof by any governmental authority charged with the administration thereof, or (ii) compliance by such Lender with any guideline, request or directive of any such entity regarding capital adequacy (whether or not having the force of law) promulgated after the date hereof, has the effect of reducing the return on such Lender's capital as a consequence of its Commitment to make Advances hereunder to a level below that which such Lender could have achieved but for such adoption, change or compliance (taking into consideration such Lender's then- existing policies with respect to capital adequacy and assuming the full utilization of such Lender's capital) by any amount deemed by such Lender to be material, then such Lender shall notify the Agent and the Borrower thereof. The Borrower agrees to pay to such Lender the amount of such reduction of capital as and when such reduction is determined, upon presentation by such Lender of a statement of the amount and setting forth such Lender's calculation thereof, which statement shall be an index in common usage by United States commercial banks deemed true and which correct absent manifest error, PROVIDED, that no Lender shall adequately reflect be entitled to charge nor shall the cost of funds Borrower be required to pay any such amount relating to a period more than 90 days prior to the Lenders. The determination of whether there date on which such statement is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretionpresented. In the event the Borrowers determining such amount, a Lender may use any reasonable averaging and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexattribution methods.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Synthetic Industries Inc)
Changed Circumstances. (a) In the event that:
(ai) on any date on which the Applicable LIBOR Eurodollar Rate would otherwise be set the Agent set, BankBoston shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair reasonable means do not exist for ascertaining the LIBOR Eurodollar Rate, as applicable; or
(bii) at any time the Majority Lenders shall notify the Agent shall that they have determined in good faith (which determination shall be final and conclusive) thatthat the Eurodollar Rate shall no longer represent the effective cost to the Majority Lenders of making or maintaining Eurodollar Advances to be made by them, or
(iiii) any Lender shall notify the implementation Agent that it has determined in good faith (which determination shall be final and conclusive) that the making or continuation of the LIBOR Pricing Option or conversion of any Advance of such Lender to a Eurodollar Advance has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank Eurodollar market or (B) compliance by any such Lender in good faith with any applicable law or governmental regulation, guideline or order Applicable Law or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in any such event, the Agent shall forthwith so notify the Borrowers thereof. Borrower thereof and:
(A) Until the Agent notifies the Borrowers Borrower that the circumstances giving rise to such any notice given pursuant to Section 5.10(a) no longer apply, the obligation of the Lenders and the Agent to allow election selection by the Borrowers Borrower of a LIBOR Pricing Option Eurodollar Advances shall be suspended. If at the time the Agent so notifies the BorrowersBorrower, the Borrowers have Borrower has previously given the Agent a Pricing Notice of Borrowing or a Notice of Conversion or Continuation with respect to one or more Borrowings to be made as or to be converted into or continued as Borrowings comprised of Eurodollar Advances (each, a LIBOR Pricing Option, Pending Borrowing) but the LIBOR Pricing Option requested therein has such Pending Borrowings have not yet gone into effectbeen so made, converted or continued, each such Pricing Notice shall automatically be deemed to be withdrawn and be an election by the Borrower of no force or effect. Upon Borrowings comprised of Base Rate Advances.
(B) On such date as shall be is specified in such any notice to the Borrower from the Agent pursuant to Section 5.10(a) (which date shall not be earlier than the date such notice is given), the LIBOR Pricing Option Borrower shall prepay the outstanding principal amount of all Eurodollar Advances, together with interest thereon and any amount required to be paid pursuant to Section 5.11, or convert all such outstanding Eurodollar Advances into Base Rate Advances by giving a Notice of Conversion or Continuation pursuant to Section 5.13.
(b) In case of any change in law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects any Lender to any tax with respect to all LIBOR Rate Loans shall be terminated. In payments of principal or interest or any other amounts payable hereunder by the event that Borrower or otherwise with respect to the LIBOR Pricing Option is suspended transactions contemplated hereby (except for taxes on the overall net income of such Lender imposed by the United States of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in accordance or for the account of, or loans by, any Lender (other than the Reserve Percentage), or
(iii) imposes upon any Lender any other condition with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an indexrespect to its performance under this Agreement, and the spread above result of any of the foregoing is to increase the cost to such indexLender, for determining interest on reduce the Loans income receivable by such Lender or impose any expense upon such Lender with respect to any Advances, such Lender shall notify the Agent and the Borrower thereof. The Borrower agrees to pay to such Lender the amount of such increase in cost, reduction in income or additional expense as an alternative and when such cost, reduction or expense is incurred or determined, upon presentation by such Lender of a statement of the amount and setting forth such Lender's calculation thereof, which statement shall be deemed true and correct absent manifest error, provided, that no Lender shall be entitled to charge nor shall the Borrower be obligated to pay any such amount relating to a period more than 90 days prior to the LIBOR Ratedate on which such statement is presented.
(c) If any lender determines that (i) the adoption of or change in, in each case after the date hereof, any law, rule, regulation or guideline regarding capital requirements for banks or bank holding companies, or any change after the date hereof in the interpretation or application thereof by any governmental authority charged with the administration thereof, or (ii) compliance by such Lender with any guideline, request or directive of any such entity regarding capital adequacy (whether or not having the force of law) promulgated after the date hereof, has the effect of reducing the return on such Lender's capital as a consequence of its Commitment to make Advances hereunder to a level below that which such Lender could have achieved but for such adoption, change or compliance (taking into consideration such Lender's then-existing policies with respect to capital adequacy and assuming the full utilization of such Lender's capital) by any amount deemed by such Lender to be material, then such Lender shall notify the Agent and the Borrower thereof. The Borrower agrees to pay to such Lender the amount of such reduction of capital as and when such reduction is determined, upon presentation by such Lender of a statement of the amount and setting forth such Lender's calculation thereof, which statement shall be an index in common usage by United States commercial banks deemed true and which correct absent manifest error, provided, that no Lender shall adequately reflect be entitled to charge nor shall the cost of funds Borrower be required to pay any such amount relating to a period more than 90 days prior to the Lenders. The determination of whether there date on which such statement is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretionpresented. In the event the Borrowers determining such amount, a Lender may use any reasonable averaging and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexattribution methods.
Appears in 1 contract
Sources: Loan and Security Agreement (Synthetic Industries Inc)
Changed Circumstances. In the event that:: ---------------------
(a) on any date day on which the Applicable rate for a LIBOR Rate Loan would otherwise be set set, the Agent Lender shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicableeither such rate; or
(b) at any time the Agent Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the implementation continuation of the or conversion of any Revolving Credit Loan to a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank applicable market or (B) compliance by any the Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(ii) the indices on which the interest rates for LIBOR Rate Loan shall no longer represent the effective cost to the Lenders Lender for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participateparticipates; then, and in any such event, the Agent Lender shall forthwith so notify the Borrowers thereof. Borrower thereof Until the Agent Lender notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and Lender to make LIBOR Loans of the Agent type affected by such changed circumstances or to allow election by permit the Borrowers of a LIBOR Pricing Option Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended. If at the time the Agent Lender so notifies the BorrowersBorrower, the Borrowers have Borrower has previously given the Agent Lender a Pricing Renewal/Conversion Notice with respect to a one or more LIBOR Pricing OptionLoans, but the LIBOR Pricing Option requested therein has such Revolving Credit Loans have not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be of no force or effectthe Borrower may borrow Revolving Credit Loans which are Base Margin Loans by giving a substitute Renewal/Conversion Notice. Upon such date as shall be specified in such notice (the expiration of the Interest Period for any LIBOR Loan which shall not be earlier than is outstanding on the date of such notice is given)notification, the amount of such LIBOR Pricing Option with respect to all LIBOR Rate Loans Loan shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexthereafter constitute a Base Margin Loan.
Appears in 1 contract
Sources: Loan and Security Agreement (Number Nine Visual Technology Corp)
Changed Circumstances. In the event that:
(a) on any date on which the Applicable LIBOR Eurodollar Rate would otherwise be set set, the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Eurodollar Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the LIBOR Eurodollar Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(ii) the LIBOR Eurodollar Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall forthwith so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Eurodollar Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have New England Audio has previously given the Agent a Eurodollar Pricing Notice with respect to a LIBOR Eurodollar Pricing Option, but the LIBOR Eurodollar Pricing Option requested therein has not yet gone into effect, such Eurodollar Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Eurodollar Pricing Option with respect to all LIBOR Eurodollar Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, terminated and the spread above such indexBorrowers, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks jointly and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such indexseverally, shall be made by agreement of pay all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree interest due on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement Eurodollar Rate Loans and any particular requirements relating amounts required to such alternative indexbe paid pursuant to Section 4.3.
Appears in 1 contract
Sources: Credit Agreement (Tweeter Home Entertainment Group Inc)
Changed Circumstances. (a) In the event that:
(a) on any date on which that the Applicable LIBOR Rate would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(i) adequate and fair means do not exist for ascertaining the implementation Interbank Offered Rate or a Federal Funds Rate on any date on which the Adjusted Eurodollar Rate or a Federal Funds Rate would otherwise be set, or
(ii) the making of a Eurodollar Loan or Federal Funds Rate Loan or the LIBOR Pricing Option continuation of or conversion of any Loan to a Eurodollar Loan or Federal Funds Rate Loan has been made impracticable (as reasonably determined by the Bank) or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank Eurodollar market or Federal funds market, as applicable, or (B2) compliance by any Lender the Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
or (iiiii) the LIBOR Adjusted Eurodollar Rate shall no longer represent represents the effective cost to the Lenders Bank for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participateparticipates; then, and in any such event, the Agent Bank shall forthwith so notify the Borrowers thereofCompany. Until the Agent Bank notifies the Borrowers Company that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent Bank to allow election selection by the Borrowers Company of a LIBOR Pricing Option the affected Loans shall be suspended. If at the time the Agent Bank so notifies the BorrowersCompany, the Borrowers have Company has previously given the Agent Bank a Pricing Notice of Borrowing or Conversion with respect to a LIBOR Pricing Option, one or more affected Loans but the LIBOR Pricing Option requested therein has such Loans have not yet gone into effectbeen made, continued or converted, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be the Company may borrow Loans of no force another type by giving a substitute Notice of Borrowing or effectConversion pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)) the Company shall forthwith prepay all outstanding affected Loans, together with interest thereon and any amounts required to be paid pursuant to Section 2.13, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or Conversion pursuant to Section 2.2 hereof.
(b) In case the LIBOR Pricing Option adoption of or any change in any law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects the Bank to any tax with respect to all LIBOR Rate Loans shall be terminated. In payments of principal or interest or any other amounts payable hereunder by the event that Company or otherwise with respect to the LIBOR Pricing Option is suspended transactions contemplated hereby (except for taxes on the overall net income of the Bank imposed by the United States of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in accordance with or for the foregoing provisions for more than sixty (60) daysaccount of, or loans by, the Borrowers may request that the Lenders propose an index, and the spread above Bank (other than such index, for determining interest on the Loans requirements as an alternative to the LIBOR Rate, which shall be an index are already included in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above Adjusted Eurodollar Rate), or (iii) imposes upon the Bank any other condition with respect to its or the Company's performance under this Agreement, and the result of any of the foregoing is to increase the cost to the Bank, reduce the income receivable by the Bank or impose any expense upon the Bank with respect to any Loans, the Bank shall notify the Company thereof. The Company agrees to pay to the Bank the amount of such indexincrease in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by the Bank of a statement in the amount and setting forth the Bank's calculation thereof, which statement shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers deemed true and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexcorrect absent manifest error.
Appears in 1 contract
Sources: Revolving Credit Agreement (Essex County Gas Company)
Changed Circumstances. (a) In the event that:
(a) on any date on which the Applicable LIBOR Rate would otherwise be set that the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at or any time the Agent Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the implementation of adequate and fair means do not exist for ascertaining the LIBOR Pricing Option Rate, or
(ii) the making of a LIBOR Loan or the continuation of or conversion of any Loan to a LIBOR Loan has been made impracticable or unlawful by due to (A1) the occurrence of a contingency that materially and adversely affects the London interbank foreign currency deposits market or (B2) compliance by the Agent or any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(iiiii) the LIBOR Rate shall no longer represent represents the effective cost to the Lenders any Lender for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participateparticipates; then, and in any such event, the Agent or such Lender shall forthwith so notify the Borrowers thereofBorrowers. Until the Agent or such Lender notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent or such Lender to allow election selection by the Borrowers of a LIBOR Pricing Option Loans shall be suspended. If at the time the Agent or such Lender so notifies the BorrowersBorrower, either of the Borrowers have has previously given the Agent a Pricing Notice with respect to made a LIBOR Pricing Option, Request but the such LIBOR Pricing Option requested therein Loan has not yet gone into effectbeen made, continued or converted, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be of no force or effectthe applicable Borrower may borrow Base Rate Loans by giving a substitute request therefor. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), ) the Borrowers shall forthwith convert the relevant LIBOR Pricing Option with respect Loans to all LIBOR Base Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with Section 2.3 hereof by giving a notice to the foregoing provisions Agent.
(b) In case the adoption of or any change in any law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) imposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for more than sixty (60) daysthe account of, or loans by, the Borrowers may request that the Lenders propose an index, and the spread above Agent or any Lender (other than such index, for determining interest on the Loans requirements as an alternative to the LIBOR Rate, which shall be an index are already included in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such indexLIBOR Rate), shall be made or
(ii) imposes upon the Agent or any Lender any other condition with respect to its or the Borrowers' performance under this Agreement, and the result of any of the foregoing is to increase the cost to any Lender, reduce the income receivable by agreement of all any Lender or impose any expense upon any Lender with respect to the Loans or the commitments of the Lenders hereunder in their sole discretion. In the event an amount which such Lender in good faith determines is material, such Lender shall notify the Borrowers thereof as promptly as is reasonably practical. The Borrowers agree to pay to such Lender the amount of such increase in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by such Lender of a statement in the Lenders agree on such alternative indexamount and setting forth a calculation thereof, appropriate amendments which statement shall be made deemed true and correct absent manifest error."
8. A new Section 2.9 is added to this the Loan Agreement to reflect such agreement and any particular requirements relating to such alternative index.read as follows:
Appears in 1 contract
Changed Circumstances. In the event that:: ---------------------
(a) on any date day on which the Applicable LIBOR rate for a Libor Rate Loan would otherwise be set set, the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicablesuch rate; or
(b) at any time the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the implementation making or continuation of the LIBOR Pricing Option or conversion of any loan to a Libor Rate Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank applicable market or (B) compliance by any Lender the Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration admin- istration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(ii) the LIBOR indices on which the interest rates for Libor Rate Loans shall no longer represent the effective cost to the Lenders Bank for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participateparticipates; then, and in any such event, the Agent Bank shall forthwith so notify the Borrowers Borrower thereof. Until the Agent Bank notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and Bank to make Libor Rate Loans of the Agent type affected by such changed circumstances or to allow election by permit the Borrowers of a LIBOR Pricing Option Borrower to select Libor Rate for any advances shall be suspended. If at the time the Agent Bank so notifies the BorrowersBorrower, the Borrowers have Borrower has previously given the Agent Bank a Pricing Notice of Borrowing or a Renew al/Conversion Notice with respect to a LIBOR Pricing Optionone or more Libor Rate Loans, but the LIBOR Pricing Option requested therein has such advances have not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be the Borrower may borrow under interest rate options otherwise available hereunder, by giving a substitute Notice of no force Borrowing or effecta Renewal/Conversion Notice. Upon such date as shall be specified in such notice (the expiration of the Interest Period for any Libor Rate Loan which shall not be earlier than is outstanding on the date of such notice is given)notification, the LIBOR Pricing Option with respect to all LIBOR amount of such Libor Rate Loans Loan shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexthereafter constitute a Floating Rate Loan.
Appears in 1 contract
Sources: Commercial Promissory Note and Loan Agreement (D M Management Co)
Changed Circumstances. In the event that:
(ai) on any date on which the Applicable LIBOR Adjusted Eurodollar Rate or the Canadian Eurodollar Rate would otherwise be set set, the Agent or the Canadian Bank, as applicable, shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Interbank Offered Rate or the Canadian Eurodollar Rate, as applicable; the case may be, or
(bii) at any time the Agent or the Canadian Bank, as applicable, shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of, or conversion of the LIBOR Pricing Option any Revolving Loan to, a Eurodollar Loan has been made impracticable or unlawful by (Al) the occurrence of a contingency that materially and adversely affects the London interbank market Interbank Eurodollar Market or (B2) compliance by the Agent or any Lender Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(iiB) the LIBOR Adjusted Eurodollar Rate or Canadian Eurodollar Rate shall no longer represent the effective cost to any U.S. Bank for United States dollar deposits, or to the Lenders Canadian Bank for U.S. Canadian dollar deposits deposits, as applicable, in the London interbank market, as applicable for deposits Interbank Eurodollar Market in which they it regularly participateparticipates; then, and in any such event, the Agent or the Canadian Bank, as applicable, shall forthwith so notify the Borrowers U.S. or Canadian Borrower thereof. Until the Agent or the Canadian Bank, as applicable, notifies the Borrowers such Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent each Bank to allow election selection by the Borrowers Borrower of a LIBOR Pricing Option the Eurodollar Loan affected by the contingencies described in this Section 2B.7 (herein called "Affected Loans") shall be suspended. If at the time the Agent or the Canadian Bank, as applicable, so notifies the Borrowerssuch Borrower, the Borrowers have such Borrower has previously given the Agent or the Canadian Bank a Pricing Notice of Borrowing or Conversion with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein has such Affected Loans have not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be such Borrower may borrow Revolving Loans of no force a non-affected type by giving a substitute Notice of Borrowing or effectConversion pursuant to Section 2B.1. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)) such Borrower shall, the LIBOR Pricing Option with respect to all LIBOR the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be paid pursuant to Section 2B.8, and may borrow a Base Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended Loan in accordance with Section 2.1 hereof, as applicable, by giving a Notice of Borrowing or Conversion pursuant to Section 2B.1 hereof. Notwithstanding the foregoing provisions for more than sixty (60) daysforegoing, to the Borrowers may request that the Lenders propose extent reasonably possible, each Bank will designate an index, and the spread above such index, for determining interest on the alternate office with respect to its advances of Eurodollar Loans as an alternative may be reasonably required to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost reduce any liability of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating Borrower to such alternative indexBank under Sections 2B.7, 2B.10 or 2B.11, so long as such designation is not disadvantageous to such Bank in any way.
Appears in 1 contract
Sources: Revolving Credit Agreement (United States Leather Inc /Wi/)
Changed Circumstances. In Notwithstanding anything to the event that:
contrary contained herein, if (ai) on any date on change in any law or interpretation thereof by any Governmental Authority makes it unlawful for a Lender to make or maintain a Eurodollar Rate Loan or a Base Rate Loan as to which the Applicable interest rate is determined by reference to the LIBOR Rate would otherwise be set Rate, (ii) the Agent shall have determined Required Lenders determine in good faith (which determination shall shall, absent manifest error, be final and conclusiveconclusive and binding upon all parties hereto) that adequate and fair means do not exist for ascertaining the LIBOR Rate, it has become impracticable as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence a result of a contingency circumstance that materially and adversely affects the London interbank market or (B) compliance by any the position of such Lender in good faith with any applicable law such market to make or governmental regulation, guideline maintain a Eurodollar Rate Loan or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not having the force of law); or
(iiiii) the LIBOR Rate shall no longer represent the effective cost to the Required Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers determine that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice Adjusted Eurodollar Rate for any requested Interest Period with respect to a LIBOR Pricing Optionproposed Eurodollar Rate Loan (or, but the LIBOR Pricing Option requested therein has Rate, in the case of a proposed Base Rate Loan as to which the interest rate is determined by reference to the LIBOR Rate) does not yet gone into effectadequately and fairly reflect the cost to such Lenders of funding such Term Loan, then, in each case, such Pricing Notice Lender or Lenders shall automatically give notice thereof to the Administrative Agent and the Borrower and may (A) declare that Eurodollar Rate Loans or Base Rate Loans as to which the interest rate is determined by reference to the LIBOR Rate will not thereafter be made by such Lender, such that any request for Eurodollar Rate Loans or Base Rate Loans as to which the interest rate is determined by reference to the LIBOR Rate from such Lender shall be deemed to be a request for a Base Rate Loan, unless such Lender’s declaration has been withdrawn (and be of no force or effect. Upon such date as it shall be specified withdrawn promptly upon the cessation of the circumstances described in such notice clause (i) or (ii) above) and (B) require that all outstanding Eurodollar Rate Loans or Base Rate Loans as to which shall not be earlier than the date such notice interest rate is given), determined by reference to the LIBOR Pricing Option with respect Rate made by such Lender be converted to all LIBOR Base Rate Loans shall be terminated. In (as to which the event that the LIBOR Pricing Option interest rate is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative not determined by reference to the LIBOR Rate) immediately, in which event all outstanding Eurodollar Rate Loans and Base Rate Loan as to which the interest rate is determined by reference to the LIBOR Rate of such Lender shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexso converted.
Appears in 1 contract
Changed Circumstances. In the event that:: ---------------------
(a) on any date day on which the Applicable LIBOR rate for a Libor Rate Loan or a Cost of Funds Rate Loan would otherwise be set set, the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicableeither such rate; or
(b) at any time the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the implementation making or continuation of the LIBOR Pricing Option or conversion of any loan to a Libor Rate Loan or a Cost of Funds Rate Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank applicable market or (B) compliance by any Lender the Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(ii) the LIBOR indices on which the interest rates for Libor Rate Loans shall no longer represent the effective cost to the Lenders Bank for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participateparticipates; then, and in any such event, the Agent Bank shall forthwith so notify the Borrowers Borrower thereof. Until the Agent Bank notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and Bank to make Libor Rate Loans or Cost of Funds Rate Loans of the Agent type affected by such changed circumstances or to allow election by permit the Borrowers Borrower to select Libor Rate or Cost of a LIBOR Pricing Option Funds Rate Loans for any advances shall be suspended. If at the time the Agent Bank so notifies the BorrowersBorrower, the Borrowers have Borrower has previously given the Agent Bank a Pricing Notice of Borrowing or a Renewal/Conversion Notice with respect to a LIBOR Pricing Optionone or more Libor Rate Loans or Cost of Funds Rate Loans, but the LIBOR Pricing Option requested therein has such advances have not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be the Borrower may borrow under interest rate options otherwise available hereunder, by giving a substitute Notice of no force Borrowing or effecta Renewal/Conversion Notice. Upon such date as shall be specified in such notice (the expiration of the Interest Period for any Libor Rate Loan or a Cost of Funds Rate Loan which shall not be earlier than is outstanding on the date of such notice is given)notification, the LIBOR Pricing Option with respect to all LIBOR amount of such Libor Rate Loans Loan or Cost of Funds Rate Loan shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexthereafter constitute a Floating Rate Loan.
Appears in 1 contract
Sources: Commercial Promissory Note and Loan Agreement (D M Management Co)
Changed Circumstances. In the event that:
(a) on If the introduction of or any change in or in the interpretation of (in each case, after the date on which hereof) any law or regulation makes it unlawful, or any Governmental Authority asserts, after the Applicable date hereof, that it is unlawful, for the Lender to perform its obligations hereunder to make or maintain LIBOR Rate would otherwise be set Loans, the Agent Lender shall have determined notify the Borrower of such event, and the right of the Borrower to select LIBOR Loans for any subsequent Interest Period or in good faith (which determination connection with any subsequent conversion of any Loan shall be final suspended until the Lender shall notify the Borrower that the circumstances causing such suspension no longer exist, and conclusive) the Borrower shall forthwith prepay in full all LIBOR Revolving Credit Loans then outstanding and shall convert each LIBOR Term Loan into a Prime Rate Term Loan, and shall pay all interest accrued thereon through the date of such prepayment or conversion; PROVIDED, that adequate and fair means do if the date of such repayment or proposed conversion is not exist for ascertaining the last day of the Interest Period applicable to such LIBOR RateLoans, as applicable; orthe Borrower shall also pay any amount due pursuant to SECTION 3.7.
(b) at any time If the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) Lender shall, prior to the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive disbursement of any such Governmental Authority (whether requested Revolving Credit Loan or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost date of any conversion or continuation of an existing Loan to the Lenders for U.S. dollar deposits in the London interbank marketbe made or continued as or converted into a LIBOR Loan (each such requested Revolving Credit Loan made and Loan to be converted or continued, as applicable for deposits in which they regularly participate; thena "Pending Loan"), and in such event, the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has will not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination Lender of whether there making or funding such Pending Loan as a LIBOR Loan or that the Interbank Offered Rate is an appropriate index meeting not determinable from any interest rate reporting service of recognized standing, then the foregoing requirements, and the determination right of the spread above Borrower to select LIBOR Loans for such indexPending Loan, any subsequent Revolving Credit Loan, or in connection with any subsequent conversion or continuation of any Loan, shall be made by agreement of all of suspended until the Lenders in their sole discretion. In Lender shall notify the event Borrower that the Borrowers circumstances causing such suspension no longer exist, and the Lenders agree on each Loan comprising each Pending Loan and each such alternative indexsubsequent Loan requested to be made, appropriate amendments continued or converted shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexor continued as or converted into a Prime Rate Loan.
Appears in 1 contract
Changed Circumstances. (a) In the event that:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; the case may be, or
(bii) at any time the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of, or conversion of the any Loan to, a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank market or (B2) compliance by the Administrative Agent or any Lender Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having haying the force of law); or
(iiB) the LIBOR Rate shall no longer represent the effective cost to the Lenders any Bank for U.S. United States dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in any such event, the Administrative Agent shall promptly so notify the Borrowers thereofBorrower thereof in writing. Until the Administrative Agent notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent each Bank to allow election selection by the Borrowers Borrower of a LIBOR Pricing Option the type of Loan affected by the contingencies described in this Section 2.10(a) (herein called “Affected Loans”) shall be suspended. If at the time the Administrative Agent so notifies the BorrowersBorrower, the Borrowers have Borrower has previously given the Administrative Agent a Pricing Notice of Borrowing or Conversion with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein has such Loans have not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be the Borrower may borrow Loans of no force a non-affected type by giving a substitute Notice of Borrowing or effectConversion pursuant to Section 2.4. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)) the Borrower shall, the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be terminated. In the event that the LIBOR Pricing Option is suspended paid pursuant to Section 2.15, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or Conversion pursuant to Section 2.4 hereof. The provisions of this Section 2.10(a) shall be applied to the foregoing provisions Borrower so as not to discriminate against the Borrower vis-à-vis other customers of the applicable Bank.
(b) In case any law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects the Administrative Agent or any Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrower or otherwise with respect to the transactions contemplated hereby (except for more than sixty taxes on the overall net income of the Administrative Agent or such Bank imposed by the United States of America or any political subdivision thereof), or
(60ii) daysimposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, the Borrowers may request that the Lenders propose an index, and the spread above Administrative Agent or any Bank (other than such index, for determining interest on the Loans requirements as an alternative to the LIBOR Rate, which shall be an index are already included in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above LIBOR Rate), or
(iii) imposes upon the Administrative Agent or any Bank any other condition with respect to its performance under this Agreement or any other Loan Document, and the result of any of the foregoing is to increase the cost to the Administrative Agent or such indexBank, reduce the income receivable by the Administrative Agent or such Bank or impose any expense upon the Administrative Agent or such Bank with respect to any Loans or any payments made under or with respect to the Letters of Credit, the Administrative Agent shall promptly notify the Borrower thereof. The Borrower agrees to pay to the Administrative Agent or such Bank the amount of such increase in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by the Administrative Agent or such Bank of a written statement of such amount and setting forth in reasonable detail the Administrative Agent’s or such Bank’s calculation thereof, which statement shall be made by agreement deemed true and correct absent manifest error. The provisions of all this Section 2.10(b) shall be applied to the Borrower so as not to discriminate against the Borrower vis-à-vis other customers of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexapplicable Bank.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Mac-Gray Corp)
Changed Circumstances. (a) In the event that:
(ai) on any date on which the Applicable LIBOR Adjusted Eurodollar Rate would otherwise be set set, the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Interbank Offered Rate, as applicable; or
(bii) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of the LIBOR Pricing Option or conversion of any Loan to a Eurodollar Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank Interbank Eurodollar market or (B2) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(iiB) the LIBOR Adjusted Eurodollar Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable Interbank Eurodollar market for deposits in which they it regularly participateparticipates; then, and in any such event, the Agent shall forthwith so notify the Borrowers Company thereof. Until the Agent notifies the Borrowers Company that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election selection by the Borrowers of a LIBOR Pricing Option Eurodollar Loan affected by the contingencies described in this Section 2.8(a) (herein called "Affected Loans") -------------- shall be suspended. If at the time the Agent so notifies the BorrowersCompany, the Borrowers have Company has previously given the Agent a Pricing Notice of Borrowing or Conversion with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein has such Loans have not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be the Borrowers may borrow Loans of no force a non-affected type by giving a substitute Notice of Borrowing or effectConversion Pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)) the Company shall, the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be terminated. In the event that the LIBOR Pricing Option is suspended paid pursuant to Section 2.13, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or Conversion pursuant to Section 2.2 hereof.
(b) In case any law, regulation, treaty or official directive or the foregoing provisions for more than sixty interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (60whether or not having the force of law):
(i) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest subjects any Lender to any tax not in effect on the Loans as an alternative date hereof with respect to payments of principal or interest or any other amounts payable hereunder by the Company or otherwise with respect to the LIBOR Rate, which shall be an index in common usage transactions contemplated hereby (except for taxes on the overall net income of such Lender imposed by the United States commercial banks and which shall adequately reflect of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirementsaccount of, and or loans by, any Lender (other than such requirements as are already included in the determination of the spread above Adjusted Eurodollar Rate), or
(iii) imposes upon any Lender any other condition with respect to its performance under this Agreement, and the result of any of the foregoing is to increase the cost to such indexLender, reduce the income receivable by such Lender or impose any expense upon such Lender with respect to any outstanding Eurodollar Loans, such Lender shall notify the Company thereof. The Borrowers, jointly and severally, agrees to pay to such Lender the amount of such increase in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by such Lender of a statement in the amount and setting forth such Lender's calculation thereof, which statement shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers deemed true and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexcorrect absent manifest error.
Appears in 1 contract
Sources: Credit Agreement (Brookstone Inc)
Changed Circumstances. In the event that:
(a) on any date on which the Applicable Circumstances Affecting LIBOR Rate would otherwise be set or LIBOR Market Index Rate Availability. If prior to the first day of any Interest Period, (i) the Agent shall have determined in good faith (which determination shall be final conclusive and conclusivebinding upon the Borrower absent manifest error) that that, by reason of circumstances affecting the relevant market, adequate and fair reasonable means do not exist for ascertaining the LIBOR RateRate for such Interest Period, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not having the force of law); or
(ii) the Agent has received notice from the Required Lenders that the LIBOR Rate shall no longer represent determined or to be determined for such Interest Period will not adequately and fairly reflect the effective cost to such Lenders of making or maintaining their LIBOR Loans during such Interest Period, or (iii) Dollar deposits in the Lenders for U.S. dollar deposits principal amounts of the LIBOR Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall so notify give telecopy or telephonic notice thereof to the Borrowers Borrower and the Lenders as soon as practicable thereafter, and will also give prompt written notice to the Borrower when such conditions no longer exist. If such notice is given (i) any LIBOR Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (ii) any Revolving Loans that were to have been converted on the first day of such Interest Period to or continued as LIBOR Loans shall be converted to or continued as Base Rate Loans and (iii) each outstanding LIBOR Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by the Agent notifies Agent, no further LIBOR Loans shall be made or continued as such, nor shall the Borrowers Borrower have the right to convert Base Rate Loans to LIBOR Loans. Notwithstanding any other provision of this Agreement, if (i) the Swingline Lender shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that, by reason of circumstances affecting the relevant market, reasonable and adequate means do not exist for ascertaining the LIBOR Market Index Rate, or (ii) the Swingline Lender shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that the circumstances LIBOR Market Index Rate does not adequately and fairly reflect the cost of funding LIBOR Market Index Swingline Loans, the Swingline Lender shall forthwith give telephone notice of such determination, confirmed in writing, to the Borrower, and thereafter the right to request LIBOR Market Index Swingline Loans shall be suspended until such time as the conditions giving rise to such notice shall no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminatedexist. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) daysMarket Index Swingline Loans are not available on account of operation of this Section, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as Swingline Lender will endeavor to provide an alternative to the LIBOR Rate, index or reference rate which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree will provide a similar interest rate based on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexhistorical data.
Appears in 1 contract
Changed Circumstances. In (a) If prior to the event thatfirst day of any Interest Period:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the Administrative Agent shall have determined in good faith (which determination shall be final conclusive and conclusivebinding upon the Borrower) that that, by reason of circumstances affecting the relevant market, adequate and fair reasonable means do not exist for ascertaining the LIBOR RateEurocurrency Rate for such Interest Period, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not having the force of law); or
(ii) the LIBOR Administrative Agent shall have received notice from the Majority Lenders or the Majority Multicurrency Lenders, as the case may be, that the Eurocurrency Rate shall no longer represent determined or to be determined for such Interest Period will not adequately and fairly reflect the effective cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Loans during such Interest Period, the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the Lenders for U.S. dollar deposits in the London interbank marketas soon as practicable thereafter. If such notice is given (w) any Eurodollar Loans or Multicurrency Loans, as applicable for deposits in which they regularly participate; thenthe case may be, and in requested to be made on the first day of such eventInterest Period shall be made as ABR Loans, provided, that, notwithstanding the provisions of subsection 2.2 or 2.14, the Borrower may cancel the request for such Eurodollar Loan or Multicurrency Loan, as the case may be, by written notice to the Administrative Agent one Business Day prior to the first day of such Interest Period and the Borrower shall so notify not be subject to any liability pursuant to subsection 3.11 with respect to such cancelled request, (x) any Loans that were to have been converted on the Borrowers thereoffirst day of such Interest Period to Eurodollar Loans shall be continued as ABR Loans, (y) any outstanding Eurodollar Loans shall be converted, on the first day of such Interest Period, to ABR Loans and (z) any Multicurrency Loans to which such Interest Period relates shall be repaid on the first day of such Interest Period. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice has been withdrawn by the Administrative Agent, no longer applyfurther Eurodollar Loans or Multicurrency Loans shall be made or continued as such, nor shall the Borrower have the right to convert ABR Loans to Eurodollar Loans.
(i) Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election with respect to any applicable then-current Benchmark, as applicable, the obligation of the Lenders Administrative Agent and the Agent Borrower may amend this Agreement to allow election by the Borrowers of replace such Benchmark with one or more Benchmark Replacements (it being understood that all amounts denominated in a LIBOR Pricing Option given currency for which a Benchmark is being replaced shall be suspendedsubject to the same Benchmark Replacement). If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice Any such amendment with respect to a LIBOR Pricing Option, but Benchmark Transition Event will become effective at 5:00 p.m. on the LIBOR Pricing Option requested therein fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower so long as the Administrative Agent has not yet gone into effectreceived, by such Pricing Notice shall automatically time, written notice of objection to such amendment from Lenders comprising the Majority Lenders. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Majority Lenders have delivered to the Administrative Agent written notice that such Majority Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section will occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right (in consultation with the Borrower) to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party hereto.
(iii) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section.
(iv) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a given Benchmark, Borrower may revoke any request for a borrowing of, conversion to or continuation of Loans subject to such Benchmark Unavailability Period to be made, converted or continued during such Benchmark Unavailability Period and, failing that, (i) in the case of a request for borrowing of, conversion to or continuation of Loans denominated in Dollars, the Borrower will be deemed to be withdrawn have converted any such request into a request for a borrowing of or conversion to ABR Loans and be (ii) in the case of no force a request for borrowing of, conversion to or effect. Upon continuation of Loans denominated in any currency other than Dollars, such date as request shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option ineffective. During any Benchmark Unavailability Period with respect to all LIBOR any Benchmark, the component of Base Rate Loans or any other Benchmark that is based upon the Benchmark that is the subject of such Benchmark Unavailability Period will not be used in any determination of Base Rate or such other Benchmark. Furthermore, if any Eurocurrency Loan in any Available Foreign Currency is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Eurocurrency Loan, then (i) if such Eurocurrency Loan is denominated in Dollars, then on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), such Loan shall be terminated. In converted by the event Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars on such day or (ii) if such Eurocurrency Loan is denominated in any Available Foreign Currency, then such Loan shall, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), at the Borrower’s election prior to such day: (A) be prepaid by the Borrower on such day or (B) be converted by the Administrative Agent to, and (subject to the remainder of this subclause (B)) shall constitute, an ABR Loan denominated in Dollars (in an amount equal to the Dollar Equivalent of such Available Foreign Currency) on such day (it being understood and agreed that if the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) daysBorrower does not so prepay such Loan on such day by 12:00 noon, local time, the Borrowers may request that Administrative Agent is authorized to effect such conversion of such Eurocurrency Loan into an ABR Loan denominated in Dollars), and, in the Lenders propose an indexcase of such subclause (B), upon any subsequent implementation of a Benchmark Replacement in respect of such Available Foreign Currency pursuant to this Section 3.6, such ABR Loan denominated in Dollars shall then be converted by the Administrative Agent to, and shall constitute, a Eurocurrency Loan denominated in such original Available Foreign Currency (in an amount equal to the spread above Available Foreign Currency Equivalent of such index, for determining interest Available Foreign Currency) on the Loans as an alternative to the LIBOR Rateday of such implementation, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating giving effect to such alternative indexBenchmark Replacement in respect of such Available Foreign Currency.
Appears in 1 contract
Changed Circumstances. In Notwithstanding any other provision of this Agreement, in the event that:
(a) on any date on which the Applicable LIBOR Rate otherwise would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive, unless not made in good faith) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Agent or any Lender shall have determined in good faith (which determination shall be final and conclusive, unless not made in good faith, and, if made by any Lender, shall have been communicated to the Agent in writing) that:
(i) the implementation making or continuation of the or conversion of any Loan to a LIBOR Pricing Option Rate Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market Eurodollar market, or (B) compliance by any the Agent or such Lender in good faith with any applicable law Law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof thereof, or with any request or directive of any such Governmental Authority (whether or not having the force of lawLaw); or
(ii) the LIBOR Rate shall no longer shall represent the effective cost to the Lenders Agent or such Lender for U.S. dollar Dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participateparticipates; then, and in any such event, the Agent promptly shall so notify the Borrowers TIMET thereof. Until the Agent notifies the Borrowers TIMET that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election selection by TIMET of the type of Loan affected by the Borrowers contingencies described in this Section 5.24 of a LIBOR Pricing Option this Agreement shall be suspended. If at the time TIMET receives a notice from the Agent so notifies pursuant to the Borrowers, the Borrowers have preceding sentence TIMET previously has given the Agent a Pricing Notice of Borrowing or Conversion with respect to a LIBOR Pricing Optionone or more affected Loans, but the LIBOR Pricing Option requested therein has such Loans have not yet gone into effectbeen made, such Pricing Notice notification shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR a request for Base Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexLoans.
Appears in 1 contract
Changed Circumstances. In If, on or before the event that:
(a) on date off acceptance of any date on which Draft, the Applicable LIBOR Rate would otherwise be set the Agent Lender shall have determined in good faith (which determination shall be final final, conclusive and conclusivebinding on the Borrower) that adequate and fair means do not exist (a) it is impermissible for ascertaining the LIBOR Rate, as applicable; or
(b) at Lender to accept any time Draft due to the Agent shall have determined introduction of any Requirement of Law or any change in good faith (which determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof has made it unlawful, or with that any request central bank or directive other Governmental Authority has asserted that it is unlawful, for the Lender to make or extend any Acceptance, or any order, judgment, or decree of any such Governmental Authority or arbitrator purports by its terms to enjoin or restrain the Lender from making or extending any Acceptance, (whether b) acceptances in amounts or for durations corresponding to the proposed Acceptance(s) are not having being readily traded in the force applicable market, or (c) by reason of law); or
(ii) changes affecting the LIBOR Rate shall no longer represent applicable market, the effective discount rate to be in effect for that period will not adequately and fairly reflect the cost to the Lenders for U.S. dollar deposits Lender of accepting or discounting the Draft, then the Lender shall be under no obligation to accept the requested Draft notwithstanding anything to the contrary in this Article III. The Lender shall notify the Borrower in the London interbank marketevent the Lender makes such a determination; PROVIDED, as applicable for deposits in which they regularly participate; thenHOWEVER, and in such event, the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise failure to give such notice no longer applyshall not affect the validity of that determination or the rejection of any Draft submitted for acceptance. No determination made under this subsection, however, shall in and of itself reduce the obligation unused portion of the Lenders and Aggregate Commitment or limit the Agent Borrower's ability to allow election by the Borrowers request other Extensions of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended Credit hereunder in accordance with the foregoing terms and provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexAgreement.
Appears in 1 contract
Sources: Revolving Credit Loan Agreement (Marshall Industries)
Changed Circumstances. In the event that:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent Bank shall have reasonably determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR RateBase, as applicable; or
(bii) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of the or conversion of any Loan to a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank market or (B2) compliance by any Lender the Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (governmental authority, whether or not having the force of lawlaw (in any such case, a "Legal Impediment"); or
(iiB) the LIBOR Rate shall no longer represent the effective cost to the Lenders Bank for United States dollar deposits in the interbank market for deposits in which it regularly participates; or
(C) that U.S. dollar deposits in immediately available funds in an amount approximately equal to the London interbank market, as applicable outstanding principal balance of the Line of Credit are not readily available to the Bank's Eurodollar Office for deposits in which they regularly participatedelivery on the first day of any Interest Period; then, and in any such event, the Agent Bank shall forthwith so notify the Borrowers thereofCompany by facsimile notice at least one (1) day prior to (i) the date that the LIBOR Rate is to be set, (ii) the commencement date of the applicable Interest Period or (iii) the occurrence of the applicable event, and the Interest Rate shall become the Prime Rate and shall remain the Prime Rate until the Bank determines and so notifies the Company that the circumstances giving rise to such notice no longer apply. Until the Agent Bank notifies the Borrowers Company that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent Bank to allow election selection by the Borrowers Company of a LIBOR Pricing Option Loan (during the occurrence of such circumstances, referred to as "Affected Loans") shall be suspended. If at the time the Agent Bank so notifies the BorrowersCompany, the Borrowers have Company has previously given the Agent Bank a Pricing Notice of Borrowing or a Notice of Continuation or Conversion with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein such borrowing or conversion has not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be the Company may only borrow or convert to a Prime Rate Loan. If as a result of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)a Legal Impediment, the Bank shall incur Breakage Costs in converting from a LIBOR Pricing Option with respect to Loan, then the Company shall pay all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative Breakage Costs to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexBank promptly upon its demand therefor for its account.
Appears in 1 contract
Changed Circumstances. In (a) The Agent may give the event Lead Borrower notice that:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the The Agent shall have determined in good faith (which determination shall be final and conclusive) on any day on which the Eurodollar rate would otherwise be set, that by reason of changes arising after the date of this Agreement affecting the principal market in Eurodollars in which Fleet National Bank participates, adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicablesuch rate; or
(bii) at any time the The Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation The continuation of, or conversion of the LIBOR Pricing Option any Revolving Credit Loan to, a Eurodollar Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank applicable market or (B) compliance by the Agent or any Tranche A Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(iiB) The indices on which the LIBOR Rate interest rates for Eurodollar Loans are based shall no longer represent the effective cost to the Lenders Agent or any Tranche A Lender for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participate; participates.
(b) In the event that the Agent gives the Lead Borrower notice of an occurrence described in Section 2.20(a), then, and in such event, the Agent shall so notify the Borrowers thereof. Until until the Agent notifies the Borrowers Lead Borrower that the circumstances giving rise to such notice no longer apply, the :
(i) The obligation of the Lenders Agent and of each Tranche A Lender to make Eurodollar Loans of the Agent type affected by such changed circumstances or to allow election by permit the Borrowers of a LIBOR Pricing Option Lead Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended. If at .
(ii) Any notice which the time the Agent so notifies the Borrowers, the Borrowers Lead Borrower shall have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Optionany Eurodollar Loan, but the LIBOR Pricing Option requested therein time for action with respect to which has not yet gone into effectoccurred prior to the Agent's having given notice pursuant to Section 2.20(a), such Pricing Notice shall automatically be deemed at the option of the Agent not to be withdrawn and be have been given.
(iii) Subject to the provisions of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is givenSection 2.9(e), the LIBOR Pricing Option Lead Borrower may (and, with respect to all LIBOR Rate Loans shall be terminated. In any event described in Section 2.20(a)(ii), shall)
(A) cancel the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest relevant borrowing or conversion notice on the Loans as an alternative same date the Lead Borrower was notified of such event; and
(B) prepay or cause to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and prepaid any particular requirements relating to such alternative indexthen affected Eurodollar Loans.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) Each Borrower agrees that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
if (i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market any law hereafter in effect or (Bii) compliance by any Lender in good faith with any applicable law or governmental regulationrequest, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not having the force of law); or
law and whether or not failure to comply therewith would be unlawful) not in effect as of the Effective Date with respect to any law now or hereafter in effect (and whether or not any such law is presently applicable to any Lender) or the interpretation or administration thereof by any Governmental Authority, shall either (A) (1) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance or similar requirement against any Revolving Credit Loans, (2) impose on such Lender any other condition regarding any Advance, this Agreement, any Note or the facilities provided hereunder, or (3) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting such Lender being imposed or modified or deemed applicable to such Lender or (B) subject such Lender to any taxes on the recording, registration, notarization or other formalization of the Revolving Credit Loans or Note, and the result of any event referred to in clause (i) or (ii) above shall be to increase the cost to such Lender of making, funding or maintaining any Revolving Credit Loans or to reduce the amount of any sum receivable by such Lender or such Lender's rate of return on capital with respect to any Revolving Credit Loans to a level below that which such Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration such Lender's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then, upon demand by such Lender, each Borrower shall immediately pay to such Lender additional amounts which shall be sufficient to compensate such Lender for such increased cost, tax or reduced rate of return. A certificate of such Lender to the Borrowers claiming compensation under this Section 4.8 shall be final, conclusive and binding on all parties for all purposes in the absence of manifest error. Such certificate shall set forth the nature of the occurrence giving rise to such compensation, the additional amount or amounts to be paid to it hereunder and the method by which such amounts were determined. In determining such amount, such Lender may use any reasonable averaging and attribution methods.
(b) If the Agent shall, at least one (1) Business Day before the effective date of any conversion of the Prime Advances into LIBOR Advances or the continuation of existing LIBOR Advances (each such requested loan made and/or to be converted or to continued, a "Pending Advance"), notify the Borrowers that the LIBOR Rate shall no longer represent based interest rate will not adequately reflect the effective cost to the Lenders of making or funding such Pending Advance as a LIBOR Advance or that LIBOR is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrowers to select a LIBOR Advance for U.S. dollar deposits in such Pending Advance, to convert the London interbank marketPrime Advances into LIBOR Advances or to continue the LIBOR Advances, as applicable for deposits in which they regularly participate; then, and in such event, shall be suspended until the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to causing such notice suspension no longer applyexist, the obligation of the Lenders and the Agent Pending Advances and each such subsequent LIBOR Advance requested to allow election by the Borrowers of a LIBOR Pricing Option be made, continued or converted shall be suspended. If at the time the Agent so notifies the Borrowersmade, the Borrowers have previously given the Agent continued as, or converted into a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexPrime Advance.
Appears in 1 contract
Sources: Loan and Security Agreement (Tropical Sportswear International Corp)
Changed Circumstances. In the event that:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the Administrative Agent shall have reasonably determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR RateBase, as applicable; or
(bii) at any time the Administrative Agent shall have reasonably determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of the or conversion of any Loan to a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank market or (B2) compliance by the Administrative Agent or any Lender Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (governmental authority, whether or not having the force of lawlaw (in any such case, a "Legal Impediment"); or
(iiB) the LIBOR Rate shall no longer represent the effective cost to the Lenders Administrative Agent or any Bank for United States dollar deposits in the interbank market for deposits in which it regularly participates; or
(C) that U.S. dollar deposits in immediately available funds in an amount approximately equal to the London interbank market, as applicable outstanding principal balance of the Line of Credit are not readily available to the Administrative Agent's Eurodollar Office for deposits in which they regularly participatedelivery on the first day of any Interest Period; then, and in any such event, the Administrative Agent shall forthwith so notify the Borrowers thereofCompany by facsimile notice at least one day prior to (i) the date that the LIBOR Rate is to be set, (ii) the commencement date of the applicable Interest Period or (iii) the occurrence of the applicable event, and the Interest Rate shall become the Prime Rate and shall remain the Prime Rate until the Administrative Agent determines and so notifies the Company that the circumstances giving rise to such notice no longer apply. Until the Administrative Agent notifies the Borrowers Company that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Administrative Agent to allow election selection by the Borrowers Company of a LIBOR Pricing Option Loan (during the occurrence of such circumstances, referred to as "Affected Loans") shall be suspended. If at the time the Administrative Agent so notifies the BorrowersCompany, the Borrowers have Company has previously given the Administrative Agent a Pricing Notice of Borrowing or a Notice of Continuation or Conversion with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein such borrowing or conversion has not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be the Company may only borrow or convert to a Prime Rate Loan. If as a result of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)a Legal Impediment, the Administrative Agent and/or any Bank shall incur Breakage Costs in converting from a LIBOR Pricing Option with respect to Loan, then the Company shall pay all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative Breakage Costs to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect Administrative Agent promptly upon its demand therefor for its account and/or the cost account of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above any such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexBank.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) Borrower agrees that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
if (i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market any law hereafter in effect or (Bii) compliance by any Lender in good faith with any applicable law or governmental regulationrequest, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not having the force of law); orlaw and whether or not failure to comply therewith would be unlawful) not in effect as of the Effective Date with respect to any law now or hereafter in effect (and whether or not any such law is presently applicable to any Lender) or the interpretation or administration thereof by any Governmental Authority, shall either (A) (1) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance or similar requirement against any Advance, (2) impose on such Lender any other condition regarding any Advance, this Agreement, any Note or the facilities provided hereunder or (3) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting such Lender being imposed or modified or deemed applicable to such Lender or (B) subject such Lender to any taxes on the recording, registration, notarization or other formalization of the Revolving Credit Loans or any Note, and the result of any event referred to in CLAUSE (I) or (II) above shall be to increase the cost to such Lender of making, funding or maintaining any Advance or to reduce the amount of any sum receivable by such Lender or such Lender's rate of return on capital with respect to any Advance to a level below that which such Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration such Lender's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then, upon demand by such Lender, Borrower shall immediately pay to such Lender additional amounts which shall be sufficient to compensate such Lender for such increased cost, tax or reduced rate of return. A certificate of such Lender to the Borrower claiming compensation under this SECTION 4.8 shall be final, conclusive and binding on all parties for all purposes in the absence of manifest error. Such certificate shall set forth the nature of the occurrence giving rise to such compensation, the additional amount or amounts to be paid to it hereunder and the method by which such amounts were determined. In determining such amount, such Lender may use any reasonable averaging and attribution methods.
(iib) If the introduction of or any change in or in the interpretation of (in each case, after the date hereof) any law or regulation makes it unlawful, or any Governmental Authority asserts, after the date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make LIBOR Advances or to fund or maintain LIBOR Advances hereunder, such Lender shall notify the Agent of such event and the Agent shall notify the Borrower of such event, and the right of the Borrower to select LIBOR Advances for any subsequent Interest Period or in connection with any subsequent conversion of any Advance shall be suspended until the Agent shall notify the Borrower that the circumstances causing such suspension no longer exist, and the Borrower shall forthwith prepay in full all LIBOR Advances then outstanding and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrower, within three (3) Business Days after such notice from the Agent, requests the conversion of all outstanding LIBOR Advances into Prime Advances; provided that, if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such LIBOR Advances, the Borrower shall also pay any amount due pursuant to SECTION 4.1(A)(III).
(c) If the Agent shall, at least one (1) Business Day before the date of any requested Advance or the effective date of any conversion or continuation of an existing Advance to be made or continued as or converted into a LIBOR Advance (each such requested Advance made and/or to be converted or continued, a "Pending Advance"), notify the Borrower that the LIBOR Rate shall no longer represent Advance will not adequately reflect the effective cost to the Lenders of making or funding such Pending Advance as a LIBOR Advance or that LIBOR is not determinable from any interest rate reporting service of recognized standing, then the right of the Borrower to select LIBOR Advances for U.S. dollar deposits such Pending Advance, or any subsequent Advances in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, connection with any subsequent conversion or continuation of any Advance shall be suspended until the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers Borrower that the circumstances giving rise to causing such notice suspension no longer applyexist, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option Pending Advances and each such subsequent Advance requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force made, continued or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, converted shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative indexor continued as, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexor converted into a Prime Advance.
Appears in 1 contract
Sources: Loan and Security Agreement (Loehmanns Holdings Inc)
Changed Circumstances. In the event that:
(a) on Subject to the provisions of this Agreement, the Borrower shall have the option (A) as of any date on which date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, LIBOR Loans of various Interest Periods; (B) as of the Applicable last day of any Interest Period, to continue all or any portion of the relevant LIBOR Loans as LIBOR Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the LIBOR Loans to Base Rate Loans; and (D) at any time, to request new Revolving Credit Loans as Base Rate Loans; provided, that Revolving Credit Loans may not be continued as or converted to LIBOR Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred.
(b) The Agent’s determination of the LIBOR Rate would otherwise as provided above shall be set conclusive. Furthermore, if the Agent shall have determined or the Lenders determines, in good faith (which determination shall be final conclusive), prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and conclusivematurity for funding the Revolving Credit Loans are not available to the Agent or the Lenders in the London Interbank LIBOR market in the ordinary course of business, or (B) that by reason of circumstances affecting the London Interbank LIBOR market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrower to be LIBOR RateLoans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, as applicable; or
but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate) or (bC) at the LIBOR Rate determined or to be determined for any time Interest Period will not adequately and fairly reflect the cost to the Lenders of making or maintaining LIBOR Loans during such Interest Period, the Agent shall have determined in good faith promptly notify the Borrower and (which determination 1) all existing LIBOR Loans shall convert to Base Rate Loans upon the end of the applicable Interest Period, and (2) no additional LIBOR Loans shall be final and conclusive) thatmade until such circumstances are cured.
(ic) If, after the implementation of date hereof, the LIBOR Pricing Option has been made impracticable introduction of, or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender change in good faith with any applicable law law, treaty, rule, regulation or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with in the interpretation or administration thereof by any governmental authority or with any request central bank or directive other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain LIBOR Loans, then the Agent shall promptly notify the Borrower and (A) the LIBOR Loans shall immediately convert to Base Rate Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional LIBOR Loans shall be made until such circumstance is cured.
(d) The Borrower shall reimburse each Lender on demand for any loss incurred or to be incurred by it in the reemployment of the funds released (i) resulting from any prepayment (for any reason whatsoever, including, without limitation, conversion to Base Margin Loans or acceleration by virtue of, and after, the occurrence and continuance of an Event of Default) of any LIBOR Loan required or permitted under this Agreement, if such Governmental Authority LIBOR Loan is prepaid other than on the last day of the Interest Period for such LIBOR Loan or (ii) in the event that after the Borrower delivers a notice of borrowing under Section 2.5(b)(ii) in respect of LIBOR Loans, such LIBOR Loans are not made on the first day of the Interest Period specified in such notice of borrowing for any reason other than a breach by such Lender of its obligations hereunder. Such loss shall be the amount as reasonably determined by such Lender as the excess, if any, of (A) the amount of interest which would have accrued to such Lender on the amount so paid or not borrowed at a rate of interest equal to the LIBOR Rate (including the LIBOR Margin) for such Loan, for the period from the date of such payment or failure to borrow to the last day (x) in the case of a payment or refinancing with Base Margin Loans other than on the last day of the Interest Period for such LIBOR Loan, of the then current Interest Period for such LIBOR Loan, or (y) in the case of such failure to borrow, of the Interest Period for such Loan which would have commenced on the date of such failure to borrow, over (B) the amount of interest which would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the London interbank market (collectively, “Breakage Costs”). Any Lender demanding reimbursement for such loss shall deliver to the Borrower from time to time one or more certificates setting forth the amount of such loss as determined by such Lender and setting forth in reasonable detail the manner in which such amount was determined.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the LIBOR Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrower to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or
or (iiC) impose on the Agent or the Lenders any other condition regarding the LIBOR Rate Loans or the Agent’s or any Lender’s funding thereof, and the Agent or Lenders shall no longer represent determine (which determination shall be conclusive) that the effective result of the foregoing is to increase the cost to the Agent or the Lenders for U.S. dollar deposits in of making or maintaining the London interbank marketLIBOR Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrower shall pay to the Agent or the Lenders, on demand, such additional amounts as applicable for deposits in which they regularly participate; thenthe Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount.
(f) All payments made by Borrower hereunder or under any other Loan Document will be made without setoff, counterclaim, or other defense. In addition, all such payments will be made free and clear of, and without deduction or withholding for, any present or future Taxes, and in the event any deduction or withholding of Taxes is required, Borrower shall comply with the next sentence of this Section 2.20(f). If any Taxes are so levied or imposed, Borrower agrees to pay the full amount of such eventTaxes and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement or any other Loan Document, including any amount paid pursuant to this Section 2.20(f) after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such other Loan Document. Borrower will furnish to Agent as promptly as possible after the date the payment of any Tax is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Borrower. The Borrower agrees to pay any present or future stamp, value added or documentary taxes or any other excise or property taxes, charges, or similar levies that arise from any payment made hereunder or under any other Loan Document or from the execution, delivery, performance, recordation, or filing of, or otherwise with respect to this Agreement or any other Loan Document.
(g) If the Agent or a Lender determines, in its sole discretion, that it has received a refund of any Taxes with respect to which the Borrower has paid additional amounts pursuant to Section 2.21(f), so long as no Event of Default has occurred and is continuing, it shall so notify pay over such refund to the Borrowers thereof. Until Borrower (but only to the Agent notifies extent of payments made, or additional amounts paid, by the Borrowers that the circumstances Borrower under Section 2.20(f) with respect to Taxes giving rise to such notice no longer applya refund), the obligation net of all out-of-pocket expenses of the Lenders Agent or such Lender and the Agent to allow election without interest (other than any interest paid by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice relevant governmental authority with respect to such a LIBOR Pricing Optionrefund); provided, but that, the LIBOR Pricing Option requested therein has not yet gone into effectBorrower, upon the request of the Agent or such Pricing Notice shall automatically be deemed Lender, agrees to be withdrawn and be of no force repay the amount paid over to the Borrower (plus any penalties, interest or effectother charges, imposed by the relevant governmental authority) to the Agent or such Lender in the event the Agent or such Lender is required to repay such refund to such governmental authority. Upon such date as shall be specified Notwithstanding anything in such notice (which this Agreement to the contrary, this Section 2.20 shall not be earlier than construed to require the date such notice is given), the LIBOR Pricing Option with respect Agent or any Lender to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty make available its tax returns (60or any other information which it deems confidential) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and Borrower or any particular requirements relating to such alternative indexother Person.
Appears in 1 contract
Changed Circumstances. In the event that:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent shall have reasonably determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR RateBase, as applicable; or
(bii) at any time the Agent shall have reasonably determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of the or conversion of any Loan to a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank market or (B2) compliance by the Agent or any Lender Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (governmental authority, whether or not having the force of lawlaw (in any such case, a "Legal Impediment"); or
(iiB) the LIBOR Rate shall no longer represent the effective cost to the Lenders Agent or any Bank for United States dollar deposits in the interbank market for deposits in which it regularly participates; or
(C) that U.S. dollar deposits in immediately available funds in an amount approximately equal to the London interbank market, as applicable outstanding principal balance of the Line of Credit are not readily available to the Agent's Eurodollar Office for deposits in which they regularly participatedelivery on the first day of any Interest Period; then, and in any such event, the Agent shall forthwith so notify the Borrowers thereofCompany by facsimile notice at least one day prior to (i) the date that the LIBOR Rate is to be set, (ii) the commencement date of the applicable Interest Period or (iii) the occurrence of the applicable event, and the Interest Rate shall become the Prime Rate and shall remain the Prime Rate until the Agent determines and so notifies the Company that the circumstances giving rise to such notice no longer apply. Until the Agent notifies the Borrowers Company that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election selection by the Borrowers Company of a LIBOR Pricing Option Loan (during the occurrence of such circumstances, referred to as "Affected Loans") shall be suspended. If at the time the Agent so notifies the BorrowersCompany, the Borrowers have Company has previously given the Agent a Pricing Notice of Borrowing or a Notice of Continuation or Conversion with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein such borrowing or conversion has not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be the Company may only borrow or convert to a Prime Rate Loan. If as a result of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)a Legal Impediment, the Agent and/or any Bank shall incur Breakage Costs in converting from a LIBOR Pricing Option with respect to Loan, then the Company shall pay all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative Breakage Costs to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect Agent promptly upon its demand therefor for its account and/or the cost account of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above any such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexBank.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) on Subject to the provisions of this Agreement, the Borrower shall have the option (A) as of any date on which date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, Eurodollar Loans of various Interest Periods; (B) as of the Applicable LIBOR last day of any Interest Period, to continue all or any portion of the relevant Eurodollar Loans as Eurodollar Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the Eurodollar Loans to Base Rate Loans; and (D) at any time, to request new Revolving Credit Loans as Base Rate Loans; provided, that Revolving Credit Loans may not be continued as or converted to Eurodollar Loans, if the continuation or conversion thereof would otherwise violate the provisions of Sections 2.20(b) or 2.20(c) of this Agreement or if an Event of Default has occurred.
(b) The Agent's determination of the Eurodollar Rate as provided above shall be set conclusive. Furthermore, if the Agent shall have determined or the Lenders determines, in good faith (which determination shall be final conclusive), prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and conclusivematurity for funding the Revolving Credit Loans are not available to the Agent or the Lenders in the London Interbank Eurodollar market in the ordinary course of business, or (B) that by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for ascertaining the LIBOR Raterate of interest to be applicable to the Revolving Credit Loans requested by the Borrower to be Eurodollar Loans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, as applicable; or
(b) at any time but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Agent shall have determined in good faith promptly notify the Borrower and (which determination 1) all existing Eurodollar Loans shall convert to Base Rate Loans upon the end of the applicable Interest Period, and (2) no additional Eurodollar Loans shall be final and conclusive) thatmade until such circumstances are cured.
(ic) If, after the implementation of date hereof, the LIBOR Pricing Option has been made impracticable introduction of, or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender change in good faith with any applicable law law, treaty, rule, regulation or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with in the interpretation or administration thereof by any governmental authority or with any request central bank or directive other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a "Regulatory Change"), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain Eurodollar Loans, then the Agent shall promptly notify the Borrower and (A) the Eurodollar Loans shall immediately convert to Base Rate Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional Eurodollar Loans shall be made until such circumstance is cured.
(d) If, for any reason, an Eurodollar Loan is paid prior to the last Business Day of any Interest Period or if an Eurodollar Loan does not occur on a date specified by the Borrower in its request (other than as a result of a default by the Agent or the Lenders), the Borrower agrees to indemnify the Agent and the Lenders against any loss (including any loss on redeployment of the deposits or other funds acquired by the Agent or the Lenders to fund or maintain such Governmental Authority Eurodollar Rate Loan) cost or expense incurred by the Agent or the Lenders as a result of such prepayment.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the Eurodollar Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrower to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); or
or (iiC) impose on the LIBOR Rate Agent or the Lenders any other condition regarding the Eurodollar Loans or the Agent's or any Lender’s funding thereof, and the Agent or Lenders shall no longer represent determine (which determination shall be conclusive) that the effective result of the foregoing is to increase the cost to the Agent or the Lenders for U.S. dollar deposits in of making or maintaining the London interbank marketEurodollar Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrower shall pay to the Agent or the Lenders, on demand, such additional amounts as applicable for deposits in which they regularly participate; thenthe Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount.
(f) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the Eurodollar Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or Lenders shall be subject to any Tax in respect of any Eurodollar Loans or any part thereof or, (B) the Borrower shall be required to withhold or deduct any Tax from any such eventamount, the Eurodollar Rate applicable to such Eurodollar Loans shall be adjusted by the Agent or Lenders to reflect all additional costs incurred by the Agent or Lenders in connection with the payment by the Agent or Lenders or the withholding by the Borrower of such Tax and the Borrower shall provide the Agent or Lenders with a statement detailing the amount of any such Tax actually paid by the Borrower. Determination by the Agent or Lenders of the amount of such costs shall be conclusive. If after any such adjustment any part of any Tax paid by the Agent or Lenders is subsequently recovered by the Agent or Lenders , the Agent or Lenders, as applicable, shall reimburse the Borrower to the extent of the amount so notify the Borrowers thereofrecovered. Until A certificate of an officer of the Agent notifies setting forth the Borrowers that the circumstances giving rise to amount of such notice no longer apply, the obligation of the Lenders recovery and the Agent to allow election by the Borrowers of a LIBOR Pricing Option basis therefor shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice conclusive (which shall not be earlier than the date such notice is givenabsent manifest error), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative index.
Appears in 1 contract
Sources: Loan and Security Agreement (Wild Oats Markets Inc)
Changed Circumstances. In the event that:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent shall have reasonably determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR RateBase, as applicable; or
(bii) at any time the Agent shall have reasonably determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of the or conversion of any Loan to a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank market or (B2) compliance by the Agent or any Lender Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (governmental authority, whether or not having the force of lawlaw (in any such case, a "Legal Impediment"); or
(iiB) the LIBOR Rate shall no longer represent the effective cost to the Lenders Agent or any Bank for United States dollar deposits in the interbank market for deposits in which it regularly participates; or
(C) that U.S. dollar deposits in immediately available funds in an amount approximately equal to the London interbank market, as applicable outstanding principal balance of the Line of Credit are not readily available to the Agent's Eurodollar Office for deposits in which they regularly participatedelivery on the first day of any Interest Period; then, and in any such event, the Agent shall forthwith so notify the Borrowers thereofCompany by facsimile notice at least one day prior to (i) the date that the LIBOR Rate is to be set, (ii) the commencement date of the applicable Interest Period or (iii) the occurrence of the applicable event, and the Interest Rate shall become the Prime Rate and shall remain the Prime Rate until the Agent determines and so notifies the Company that the circumstances giving rise to such notice no longer apply. Until the Agent notifies the Borrowers Company that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election selection by the Borrowers Company of a LIBOR Pricing Option Loan (during the occurrence of such circumstances, referred to as "Affected Loans") shall be suspended. If at the time the Agent so notifies the BorrowersCompany, the Borrowers have Company has previously given the Agent a Pricing Notice of Borrowing or a Notice of Continuation or Conversion with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein such borrowing or conversion has not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, void and the spread above such index, for determining interest on the Loans Company may only borrow or convert to a Prime Rate Loan. If as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost a result of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative index.a Legal
Appears in 1 contract
Changed Circumstances. (a) In the event that:
(ai) on any date on which the Applicable LIBOR Adjusted Eurodollar Rate would otherwise be set the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR London Interbank Offered Rate, as applicable; or
(bii) at any time the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of the LIBOR Pricing Option or conversion of any Loan to a Eurodollar Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank Eurodollar market or (B2) compliance by any Lender the Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(iiB) the LIBOR Adjusted Eurodollar Rate shall no longer represent the effective cost to the Lenders Bank for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option ;
(a) (herein called "AFFECTED LOANS") shall be suspended. If at the time the Agent Bank so notifies the Borrowerseach Borrower, the Borrowers have a Borrower has previously given the Agent Bank a Pricing Notice Loan Request with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein has such Loans have not yet gone into effect, such Pricing Notice Loan Request shall automatically be deemed to be withdrawn and void and, if the Bank in its discretion continues to be willing to lend to such Borrower, such Borrower may borrow Loans of no force or effecta non-affected type by delivering a substitute Loan Request pursuant to Section 2.2(a) hereof. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)) each Borrower shall, the LIBOR Pricing Option with respect to all LIBOR Rate the outstanding Affected Loans shall made to it, prepay the same, together with interest thereon and any amounts required to be terminated. In the event that the LIBOR Pricing Option is suspended paid pursuant to Section 2.10, and may borrow Loans of another type in accordance with Section 2.1 hereof by delivering substitute Loan Requests pursuant to Section 2.2(a) hereof.
(b) In case any change in law, regulation, treaty or official directive or the foregoing provisions interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects the Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by any Borrower or otherwise with respect to the transactions contemplated hereby (except for more than sixty taxes on the overall net income of the Bank imposed by the United States of America or any political subdivision thereof), or
(60ii) daysimposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, the Borrowers may request that the Lenders propose an index, and the spread above Bank (other than such index, for determining interest on the Loans requirements as an alternative to the LIBOR Rate, which shall be an index are already included in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above Adjusted Eurodollar Rate), or
(iii) imposes upon the Bank any other condition with respect to its performance under this Agreement, and the result of any of the foregoing is to increase the cost to the Bank, reduce the income receivable by the Bank or impose any expense upon the Bank with respect to any Loans, the Bank shall notify each Borrower thereof. To the extent such indexcost, reduction or expense is attributable to any specific Loan or Loans, the applicable Borrower(s) agree(s) to pay to the Bank the amount of such increase in cost, reduction in income or additional expense attributable to such Loan or Loans as and when such cost, reduction or expense is incurred or determined, upon presentation by the Bank of a statement in the amount and setting forth the Bank's calculation thereof, which statement shall be deemed true and correct absent manifest error. To the extent such cost, reduction or expense is not so attributable to any Loan or Loans, each Borrower, for itself or on behalf of the Portfolios, as applicable, agrees to pay to the Bank, in the proportion that the average amount of Loans outstanding made by agreement to such Borrower for its own account or for the account of each Portfolio during the preceding 12-month period (or such shorter period that this Agreement shall have been effective) bears to the average amount of all Loans outstanding to all Borrowers during such period (or, if no Loans shall have been outstanding, 10% of such amount), the Lenders amount of such increase in their sole discretion. In the event the Borrowers cost, reduction in income or additional expense, determined and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexpaid as aforesaid.
Appears in 1 contract
Sources: Credit Agreement (RBB Fund Inc)
Changed Circumstances. In the event that:
(a) on CIRCUMSTANCES AFFECTING LIBOR RATE OR LIBOR MARKET INDEX RATE AVAILABILITY. If prior to the first day of any date on which the Applicable LIBOR Rate would otherwise be set Interest Period, (i) the Agent shall have determined in good faith (which determination shall be final conclusive and conclusivebinding upon the Borrower absent manifest error) that that, by reason of circumstances affecting the relevant market, adequate and fair reasonable means do not exist for ascertaining the LIBOR RateRate for such Interest Period, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not having the force of law); or
(ii) the Agent has received notice from the Required Lenders that the LIBOR Rate shall no longer represent determined or to be determined for such Interest Period will not adequately and fairly reflect the effective cost to such Lenders of making or maintaining their LIBOR Loans during such Interest Period, or (iii) Dollar deposits in the Lenders for U.S. dollar deposits principal amounts of the LIBOR Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall so notify give telecopy or telephonic notice thereof to the Borrowers Borrower and the Lenders as soon as practicable thereafter, and will also give prompt written notice to the Borrower when such conditions no longer exist. If such notice is given (i) any LIBOR Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (ii) any Revolving Loans that were to have been converted on the first day of such Interest Period to or continued as LIBOR Loans shall be converted to or continued as Base Rate Loans and (iii) each outstanding LIBOR Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by the Agent notifies Agent, no further LIBOR Loans shall be made or continued as such, nor shall the Borrowers Borrower have the right to convert Base Rate Loans to LIBOR Loans. Notwithstanding any other provision of this Agreement, if (i) the Swingline Lender shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that, by reason of circumstances affecting the relevant market, reasonable and adequate means do not exist for ascertaining the LIBOR Market Index Rate, or (ii) the Swingline Lender shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that the circumstances LIBOR Market Index Rate does not adequately and fairly reflect the cost of funding LIBOR Market Index Swingline Loans, the Swingline Lender shall forthwith give telephone notice of such determination, confirmed in writing, to the Borrower, and thereafter the right to request LIBOR Market Index Swingline Loans shall be suspended until such time as the conditions giving rise to such notice shall no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminatedexist. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) daysMarket Index Swingline Loans are not available on account of operation of this Section, the Borrowers may request that Swingline Lender will endeavor to provide an alternative index or reference rate which will provide a similar interest rate based on historical data.
(b) LAWS AFFECTING LIBOR RATE AVAILABILITY. Notwithstanding any other provision herein, if the Lenders propose adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an indexarbitrator or a court or other governmental authority or in the interpretation or application thereof occurring after the Closing Date shall make it unlawful for any Lender to make or maintain LIBOR Loans as contemplated by this Credit Agreement, (i) such Lender shall promptly give written notice of such circumstances to the Borrower and the spread above Agent (which notice shall be withdrawn whenever such indexcircumstances no longer exist), for determining interest on (ii) the commitment of such Lender hereunder to make LIBOR Loans, continue LIBOR Loans as an alternative such and convert a Base Rate Loan to the LIBOR RateLoans shall forthwith be canceled and, which until such time as it shall no longer be an index in common usage by United States commercial banks unlawful for such Lender to make or maintain LIBOR Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a LIBOR Loan is requested and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements(iii) such Lender's Revolving Loans then outstanding as LIBOR Loans, and the determination of the spread above such indexif any, shall be made by agreement of all converted automatically to Base Rate Loans on the respective last days of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating then current Interest Periods with respect to such alternative indexRevolving Loans or within such earlier period as required by law. If any such conversion of a LIBOR Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.5(c).
Appears in 1 contract
Sources: Syndication Amendment and Assignment (Sterile Recoveries Inc)
Changed Circumstances. In the event that:
(a) on any date on which The Lender may advise the Applicable LIBOR Rate would otherwise be set Lead Borrower that the Agent shall have determined in Lender has made the good faith determination (which determination shall be final and conclusive) that adequate of any of the following:
(i) Adequate and fair means do not exist for ascertaining the rate for LIBOR Rate, as applicable; orLoans.
(bii) at The continuation of or conversion of any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the Revolving Credit Loan to a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank applicable market or (B) the compliance by any the Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not having the force of law); orApplicable Law.
(iiiii) The indices on which the interest rates for LIBOR Rate Loans are based shall no longer represent the effective cost to the Lenders Lender for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participate; participates.
(b) In the event that the Lender advises the Lead Borrower of an occurrence described in Section (a), then, and in such event, until the Agent shall so notify the Borrowers thereof. Until the Agent Lender notifies the Borrowers Lead Borrower that the circumstances giving rise to such notice no longer apply, apply (which notice the Lender shall give promptly after it has knowledge thereof):
(i) The obligation of the Lenders and Lender to make loans of the Agent type affected by such changed circumstances or to allow election by permit the Borrowers of a LIBOR Pricing Option Lead Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended. If at .
(ii) Any notice which the time the Agent so notifies the Borrowers, the Borrowers have previously Lead Borrower had given the Agent a Pricing Notice Lender with respect to a any LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)Loan, the LIBOR Pricing Option time for action with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative which has not occurred prior to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds Lender's having given notice pursuant to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such indexSection (a), shall be made by agreement of all deemed at the option of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made Lender to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexnot having been given.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent shall have determined in good faith (which good faith determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which good faith determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market market, or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits of obtaining the relevant currency in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall forthwith so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer applyapply (which notice the Agent agrees to give at or about the same time that it gives similar notices to its customers similarly situated), the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, terminated and the Borrowers may request that shall pay all interest due on such LIBOR Rate Loans and any amounts required to be paid pursuant to Section 4.3 (except in the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination case of the spread above termination of LIBOR Loans pursuant to Section 2.16(b)(ii) in which case such index, LIBOR Loans shall be made by agreement of all continue until the end of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexapplicable Interest Period).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Gerber Scientific Inc)
Changed Circumstances. (a) In the event that:
(ai) on any date on which the Applicable LIBOR Adjusted Eurodollar Rate would otherwise be set the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Interbank Offered Rate, as applicable; or
(bii) at any time the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of the LIBOR Pricing Option or conversion of any Loan to a Eurodollar Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank Eurodollar market or (B2) compliance by any Lender the Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(iiB) the LIBOR Adjusted Eurodollar Rate shall no longer represent the effective cost to the Lenders Bank for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participate; then, and in such event, the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option participates;
(a) (herein called "AFFECTED LOANS") shall be suspended. If at the time the Agent Bank so notifies the BorrowersBorrower, the Borrowers have Borrower has previously given the Agent Bank a Pricing Notice Loan Request with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein has such Loans have not yet gone into effect, such Pricing Notice Loan Request shall automatically be deemed to be withdrawn void and be the Borrower may borrow Loans of no force or effecta non-affected type by delivering a substitute Loan Request pursuant to Section 2.2(a) hereof. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)) the Borrower shall, the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be terminated. In the event that the LIBOR Pricing Option is suspended paid pursuant to Section 2.12, and may borrow a Loan of another type in accordance with Section 2.1 hereof by delivering a substitute Loan Request pursuant to Section 2.2(a) hereof.
(b) In case any change in law, regulation, treaty or official directive or the foregoing provisions interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects the Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrower or otherwise with respect to the transactions contemplated hereby (except for more than sixty taxes on the overall net income of the Bank imposed by the United States of America or any political subdivision thereof), or
(60ii) daysimposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, the Borrowers may request that the Lenders propose an index, and the spread above Bank (other than such index, for determining interest on the Loans requirements as an alternative to the LIBOR Rate, which shall be an index are already included in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above Adjusted Eurodollar Rate), or
(iii) imposes upon the Bank any other condition with respect to its performance under this Agreement. and the result of any of the foregoing is to increase the cost to the Bank, reduce the income receivable by the Bank or impose any expense upon the Bank with respect to any Loans, the Bank shall notify the Borrower thereof. The Borrower agrees to pay to the Bank the amount of such indexincrease in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by the Bank of a statement in the amount and setting forth the Bank's calculation thereof, which statement shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers deemed true and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexcorrect absent manifest error.
Appears in 1 contract
Changed Circumstances. (a) In the event that:
: (ai) on any date on which the Applicable LIBOR Adjusted Eurodollar Rate would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Interbank Offered Rate, as applicable; or
or (bii) at any time the Agent shall have determined in good faith received notice that: (which determination shall be final and conclusive) that
(iA) the implementation making or continuation of the LIBOR Pricing Option or conversion of any Loan to a Eurodollar Loan by any Bank has been made impracticable or unlawful by (Al) the occurrence of a contingency that materially and adversely affects the London interbank Eurodollar market in which such Bank regularly participates or (B2) compliance by any Lender Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
or (iiB) the LIBOR Adjusted Eurodollar Rate applicable to any proposed Eurodollar Loan shall no longer represent not fairly and adequately reflect the effective cost of the Required Banks to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participatefund such Loan; then, and in any such event, the Agent shall forthwith so notify the Borrowers Borrower thereof. Until the Agent notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the obligation ability of the Lenders and the Agent Borrower to allow election by the Borrowers of a LIBOR Pricing Option select Eurodollar Loans shall be suspended. If at the time the Agent so notifies the BorrowersBorrower, the Borrowers have Borrower has previously given the Agent delivered a Pricing Notice with respect to Loan Request for a LIBOR Pricing Option, Eurodollar Loan but the LIBOR Pricing Option requested therein such Loan has not yet gone into effect, such Pricing Notice Loan Request shall automatically be deemed to be withdrawn void and be of no force or effectthe Borrower may borrow a Base Rate Loan by giving a substitute Loan Request pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)) the Borrower shall, the LIBOR Pricing Option with respect to all LIBOR outstanding Eurodollar Loans, prepay the same, together with interest thereon and any amounts required to be paid pursuant to Section 2.12, and may borrow a Base Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended Loan by requesting such Loan in accordance with Section 2.2 hereof.
(b) In case any law, regulation, treaty or official directive or the foregoing provisions interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law): (i) subjects any Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrower or otherwise with respect to the transactions contemplated hereby (except for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest taxes on the Loans as an alternative to overall net income of any Bank imposed by the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect of America or any political subdivision thereof), or (ii) imposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirementsaccount of, and or loans by, any Bank (other than such requirements as are already included in the determination of the spread above Adjusted Eurodollar Rate), or (iii) imposes upon any Bank any other condition with respect to its performance under this Agreement, and the result of any of the foregoing is to increase the cost to such indexBank, reduce the income receivable by such Bank or impose any expense upon such Bank with respect to any Loans, such Bank shall notify the Agent and the Agent shall notify the Borrower thereof. The Borrower agrees to pay to such Bank the amount of such increase in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by the affected Bank of a statement in the amount and setting forth such Bank's calculation thereof, which statement shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers deemed true and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexcorrect absent manifest error.
Appears in 1 contract
Sources: Credit Agreement (FMR Corp)
Changed Circumstances. In (a) The Lender may give the event thatBorrower notice of the occurrence of the following:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent The Lender shall have determined in good faith (which determination shall be final and conclusive) on any day on which the rate for a Eurodollar Loan would otherwise be set, that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; orsuch rate.
(bii) at any time the Agent The Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation The continuation of the LIBOR Pricing Option or conversion of any Revolving Credit Loan to a Eurodollar Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank applicable market or (B) compliance by any the Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or.
(iiB) The indices on which the LIBOR Rate interest rates for Eurodollar Loans are based shall no longer represent the effective cost to the Lenders Lender for U.S. dollar U.S.dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participate; participates.
(b) In the event that the Lender gives the Borrower notice of an occurrence described in Section 2-21(a), then, and in such event, until the Agent shall so notify the Borrowers thereof. Until the Agent Lender notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the :
(i) The obligation of the Lenders and Lender to make Eurodollar Loans of the Agent type affected by such changed circumstances or to allow election by permit the Borrowers of a LIBOR Pricing Option Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended. If at .
(ii) Any notice which the time the Agent so notifies the Borrowers, the Borrowers have previously Borrower had given the Agent a Pricing Notice Lender with respect to a LIBOR Pricing Optionany Eurodollar Loan, but the LIBOR Pricing Option requested therein time for action with respect to which has not yet gone into effectoccurred prior to the Lender's having given notice pursuant to Section 2-21(a), such Pricing Notice shall automatically be deemed to be withdrawn a request for a Base Margin Loan.
(c) Notwithstanding the foregoing, the Lender agrees to use its reasonable efforts (consistent with its internal policy and be of no force or effect. Upon legal and regulatory restrictions and so long as such date as shall be specified in such notice (which shall efforts would not be earlier than disadvantageous to it, in its reasonable discretion, in any legal, economic or regulatory manner) to designate a different lending office if the date making of such notice is given), designation would allow the LIBOR Pricing Option with respect Lender or its lending office to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative continue to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexmake Eurodollar Loans.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) If, after the implementation of date hereof, the LIBOR Pricing Option has been made impracticable introduction of, or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with change in, any applicable law or governmental regulation, guideline or order or in the interpretation or change administration thereof by any Governmental Authority governmental authority, central bank or comparable agency charged with the interpretation or administration thereof thereof, or compliance by Bank with any request or directive of any such Governmental Authority (whether or not having the force of law) of such governmental authority, central bank or comparable agency:
(1) shall subject Bank to any tax, duty or other charge with respect to this Note or shall change the basis of taxation of payments to Bank of the principal of or interest on this Note or any other amounts due in respect thereof (except for changes in the rate of tax on the overall net income of Bank imposed by any governmental authority); or
(2) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board), special deposit or similar requirement against assets of the Bank, deposits with or for the account of the Bank, or credit extended by Bank, or shall impose on Bank or the foreign exchange and interbank markets any other condition affecting the Note; and the result of any of the foregoing is to increase the cost to Bank of maintaining any LIBOR-Based Rate or; to reduce the amount of any sum received or receivable by Bank under the Note in respect of interest at the LIBOR-Based Rate; then the Bank shall promptly notify Borrower of such fact and demand compensation therefor and, within fifteen (15) days after such notice by Bank, Borrower agrees to pay to Bank such additional amount or amounts as will compensate Bank for such increased cost or reduction. Bank will promptly notify Borrower of any event of which it has knowledge which will entitle Bank to compensation pursuant to this Subparagraph 2.4 (i); provided, however, that Bank shall incur no liability whatsoever to Borrower in the event it fails to do so. The amount of such compensation shall be determined, by the Bank, as the amount actually incurred by the Bank as a result of the foregoing. Bank's calculations of any such loss or expense shall be furnished to Borrower and shall be prima facie evidence thereof.
(ii) If, at any time, Bank shall determine in good faith that, by reason of circumstances affecting the LIBOR Rate foreign exchange and interbank markets generally, deposits in Optional Currency in the applicable amounts are not being offered to Bank, then Bank shall promptly give notice thereof to Borrower. Thereafter, until Bank notifies Borrower that such circumstances no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer applyexist, the obligation of Bank to make the Lenders and the Agent LIBOR-Based Rate available to allow election by the Borrowers of a LIBOR Pricing Option Borrower shall be suspended, and Borrower shall subject to the following sentence hereof, repay in full the then outstanding principal amount of the Loan together with accrued interest thereon together with amounts owed under Section 2.4(h). If at Notwithstanding the time the Agent so notifies the Borrowersforegoing, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option Bank determines that Optional Currency is suspended in accordance with the foregoing provisions for more than sixty (60) daysnot available to it, the Borrowers may request that Bank will make a good faith effort to convert the Lenders propose outstanding Advance to an index, Advance payable in Dollars and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which Borrower shall be an index responsible for paying all costs or expenses arising from such conversion, including those set forth in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretionSection 2.4(h) hereof. In the event the Borrowers Bank is able to convert the Advance to an Advance payable in Dollars, the Borrower will sign such amendments to the Loan Documents as the Bank may reasonably request to make the Loan Documents consistent with the Bank's standard terms for LIBOR-Based Loans payable in Dollars.
(iii) If, after the date hereof, the introduction of, or any change in, any applicable law or in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by Bank with any request or directive (whether or not having the force of law) of any such governmental authority, central bank or comparable agency, shall make it unlawful or impossible for Bank to honor its obligations hereunder to make or maintain any LIBOR-Based Rate or make an Optional Currency Advance, Bank shall promptly give notice thereof to Borrower. Thereafter, until Bank notifies Borrower that such circumstances no longer exists, (A) the obligations of Bank to make available the LIBOR-Based Rate or Optional Currency Advances and the Lenders agree on such alternative index, appropriate amendments right of Borrower to convert any rate to a LIBOR-Based Rate or receive Optional Currency Advances shall be made suspended, and (B) if Bank may not lawfully continue to this Agreement maintain a LIBOR-Based Rate or extend Optional Currency Advances, as the case may be, to reflect the end of the then current Interest Period applicable thereto, the Loan shall, subject to the following sentence hereof, be immediately due in the event of an Optional Currency Advance. Notwithstanding the foregoing, in the event that the Bank determines that Optional Currency is not available to it, the Bank will make a good faith effort to convert any outstanding Optional Currency Advance to a Dollar Advance, and the Borrower shall be responsible for paying all costs or expenses arising from such agreement conversion, including those set forth in Section 2.4(h) hereof. In the event the Bank is able to convert the Advance to an Advance payable in Dollars, the Borrower will sign such amendments to the Loan Documents as the Bank may reasonably request to make the Loan Documents consistent with the Bank's standard terms for LIBOR-Based Loans payable in Dollars.
(iv) The provisions of Sections 2.4 (h) and (i) shall similarly inure to the benefit to any particular requirements relating party to such alternative indexwhom the Lender sells an interest, or participates on interest herein, as authorized pursuant to Section 8.9 hereof.
Appears in 1 contract
Changed Circumstances. (a) In the event that:
(a) on any date on which that the Applicable LIBOR Rate would otherwise be set the Agent Bank shall have determined in good faith (which determination shall be final and conclusive, so long as the Bank shall provide reasonable evidence of the basis of such determination) that that:
(i) adequate and fair means do not exist for ascertaining the LIBOR RateInterbank Offered Rate on any date on which the Adjusted Eurodollar Rate would otherwise be set, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(iii) the implementation making of a Eurodollar Loan or the LIBOR Pricing Option continuation of or conversion of any Loan to a Eurodollar Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank Eurodollar market or (B2) compliance by any Lender the Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(iiiii) the LIBOR Adjusted Eurodollar Rate shall no longer represent represents the effective cost to the Lenders Bank for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participateparticipates; then, and in any such event, the Agent Bank shall forthwith so notify the Borrowers thereofBorrower. Until the Agent Bank notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent Bank to allow election selection by the Borrowers Borrower of a LIBOR Pricing Option Eurodollar Loans shall be suspended. If at the time the Agent Bank so notifies the BorrowersBorrower, the Borrowers have Borrower has previously given the Agent Bank a Pricing Notice of Borrowing or Conversion with respect to a LIBOR Pricing Option, one or more Eurodollar Loans but the LIBOR Pricing Option requested therein has such Loans have not yet gone into effectbeen made, continued or converted, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be the Borrower may borrow Loans of no force another type by giving a substitute Notice of Borrowing or effectConversion pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)) the Borrower shall forthwith prepay all outstanding Eurodollar Loans, together with interest thereon and any amounts required to be paid pursuant to Section 2.13, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or Conversion pursuant to Section 2.2 hereof.
(b) In case the LIBOR Pricing Option adoption of or any change in any law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects the Bank to any tax with respect to all LIBOR Rate Loans shall be terminated. In payments of principal or interest or any other amounts payable hereunder by the event that Borrower or otherwise with respect to the LIBOR Pricing Option is suspended transactions contemplated hereby (except for taxes on the overall net income of the Bank imposed by the United States of America or any political subdivision thereof or any taxes imposed in accordance with substitution or replacement for taxes on the foregoing provisions overall net income of the Bank), or
(ii) imposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for more than sixty (60) daysthe account of, or loans by, the Borrowers may request that the Lenders propose an index, and the spread above Bank (other than such index, for determining interest on the Loans requirements as an alternative to the LIBOR Rate, which shall be an index are already included in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above Adjusted Eurodollar Rate), or
(iii) imposes upon the Bank any other condition with respect to its or the Borrower's performance under this Agreement, and the result of any of the foregoing is to increase the cost to the Bank, reduce the income receivable by the Bank or impose any expense upon the Bank with respect to any Loans, the Bank shall notify the Borrower thereof. The Borrower agrees to pay to the Bank the amount of such indexincrease in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by the Bank of a statement in the amount and setting forth the Bank's calculation thereof, which statement shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers deemed true and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexcorrect absent manifest error.
Appears in 1 contract
Sources: Revolving Credit Agreement (First Empire State Corp)
Changed Circumstances. In the event that:
(a) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market market, or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall forthwith so notify the Borrowers Borrower thereof. Until the Agent notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers Borrower of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the BorrowersBorrower, the Borrowers have Borrower has previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice given by the Agent (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, terminated and the spread above such index, for determining Borrower shall pay all interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree due on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement LIBOR Rate Loans and any particular requirements relating amounts required to such alternative indexbe paid pursuant to Section 4.6.
Appears in 1 contract
Sources: Credit Agreement (Saucony Inc)
Changed Circumstances. In the event that:
(a) on a On any date day on which the Applicable rate for a LIBOR Rate Loan would otherwise be set set, the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicableeither such rate; or
(b) at b At any time the Administrative Agent shall have determined in good faith (which determination shall be final and conclusiveconclu- sive) that:
(i) i the implementation continuation of the or conversion of any Revolving Credit Loan to a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank applicable market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration admin- istration thereof or with any request or directive of any such Governmental Authority (whether or not governmental authority having the force of law); or
(ii) ii the indices on which the interest rates for LIBOR Rate Loan shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they regularly participate; then, and in any such event, the Administrative Agent shall forthwith so notify the Borrowers Lead Borrower thereof. Until the Administrative Agent notifies the Borrowers Lead Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and to make LIBOR Loans of the Agent type affected by such changed circumstances or to allow election by permit the Borrowers of a LIBOR Pricing Option Lead Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended. If at the time the Administrative Agent so notifies the BorrowersLead Borrower, the Borrowers have Lead Borrower has previously given the Administrative Agent a Pricing Renewal/Conversion Notice with respect to a one or more LIBOR Pricing OptionLoans, but the LIBOR Pricing Option requested therein has such Revolving Credit Loans have not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be of no force or effectthe Lead Borrower may borrow Revolving Credit Loans which are Base Margin Loans by giving a substitute Renewal/Conversion Notice. Upon such date as shall be specified in such notice (the expi- ration of the Interest Period for any LIBOR Loan which shall not be earlier than is outstanding on the date of such notice is given)notification, the amount of such LIBOR Pricing Option with respect to all LIBOR Rate Loans Loan shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexthereafter constitute a Base Margin Loan.
Appears in 1 contract
Sources: Loan and Security Agreement (Dynamics Research Corp)
Changed Circumstances. In the event that:
(a) on If the introduction of or any change in or in the interpretation of (in each case, after the date on which hereof) any law or regulation makes it unlawful, or any governmental authority asserts, after the Applicable date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make LIBOR Rate would otherwise be set Loans or to fund or maintain LIBOR Loans hereunder, such Lender shall notify the Agent of such event and the Agent shall have determined notify the Borrowers of such event, and the right of the Borrowers to select LIBOR Loans for any subsequent Interest Period or in good faith (which determination connection with any subsequent conversion of any Loan shall be final suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and conclusive) the Borrowers shall forthwith prepay in full all LIBOR Loans then outstanding, and shall pay all interest accrued thereon through the date of such prepayment or conversion, unless the Borrowers, within three Business Days after such notice from the Agent, request the conversion of all LIBOR Loans then outstanding into Prime Rate Loans; provided, that adequate and fair means do if the date of such repayment or proposed conversion is not exist for ascertaining the last day of the Interest Period applicable to such LIBOR RateLoan, as applicable; orthe Borrowers shall also pay any amount due pursuant to Section 4.10.
(b) If the Agent shall, at least one Business Day before the date of any time requested Loan or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a LIBOR Loan (each such requested Loan made and Loan to be converted or continued, a "Pending Loan"), notify the Borrowers that LIBOR will not adequately reflect the cost to the Lenders of making or funding such Pending Loan as a LIBOR Loan or that the Interbank Offered Rate is not reasonably determinable, including from any interest rate reporting service of recognized standing, then the right of the Borrowers to select LIBOR Loans for such Pending Loan, any subsequent Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Agent shall have determined in good faith (which determination notify the Borrowers that the circumstances causing such suspension no longer exist, and each Pending Loan and each such subsequent Loan requested to be made, continued or converted shall be final and conclusivemade or continued as or converted into a Prime Rate Loan.
(c) that
If, due to either (i) the implementation introduction of or any change (other than any change by way of imposition or increase of reserve requirements included in the LIBOR Pricing Option has been made impracticable Reserve Percentage) in or unlawful in the interpretation of, in each case after the date hereof, any law or regulation (except to the extent such introduction, change or interpretation affects taxes measured by net income), or (Aii) the occurrence compliance with a guideline or request (except to the extent such guideline or request affects taxes measured by net income) from any central bank or other governmental authority (whether nor not having the force of a contingency that materially and adversely affects law) made after the London interbank market or (B) compliance by date hereof, there shall be any increase in the cost to any Lender of agreeing to make or making, funding or maintaining LIBOR Loans (other than as separately provided for in good faith Section 4.15(d)), then the Borrowers shall from time to time, within thirty (30) days after demand by such Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost.
(d) If (i) the adoption of or change in, after the date hereof, any applicable law law, rule, regulation or governmental regulationguideline regarding capital requirements for banks or bank holding companies, guideline or order or any change, after the date hereof, in the interpretation or change application thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof thereof, or (ii) compliance by such Lender with any guideline, request or directive directive, made or promulgated after the date hereof, of any such Governmental Authority entity regarding capital adequacy (whether or not having the force of law); or
, has the effect of reducing the return on a Lender's capital as a consequence of its maintaining its Loans or commitment to make Loans hereunder to a level below that which such Lender could have achieved but for such adoption, change or compliance (iitaking into consideration such Lender's policies with respect to capital adequacy immediately before such adoption, change or compliance and assuming the full utilization of such Lender's capital immediately before such adoption, change or compliance) or if any change in law, regulation, treaty or official directive or the LIBOR Rate shall no longer represent interpretation or application thereof by any court or by any governmental authority charged with the effective cost administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law) subjects a Lender to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrowers or otherwise with respect to the Lenders transactions contemplated hereby (except for U.S. dollar deposits taxes on the overall net income of such Lender imposed by the United States of America or any political subdivision thereof), in the London interbank marketeach case by any amount deemed by such Lender to be material, as applicable for deposits in which they regularly participate; then, and in then such event, the Agent Lender shall so promptly after its determination of such occurrence notify the Borrowers and the Agent thereof. Until The Borrowers agree to pay to the Agent notifies Agent, for the Borrowers account of such Lender, as an additional fee from time to time, within thirty (30) days after demand by such Lender, such amount as such Lender certifies to be the amount that will compensate it for such reduction or tax.
(e) Before giving any notice pursuant to Section 4.15(a) or making any demand pursuant to Sections 4.15(c) or (d), each Lender agrees to use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different lending office if the circumstances making of such a designation would avoid the need for such notice or demand, or reduce the amount of such increased cost, reduction in return or tax and would not, in the judgment of such Lender, be otherwise disadvantageous to such Lender.
(f) A certificate of the Lender claiming compensation under Sections 4.15(c) or (d) shall be conclusive in the absence of manifest error. Such certificate shall set forth the nature of the occurrence giving rise to such notice no longer applycompensation, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed additional amount or amounts to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect paid to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an indexit hereunder, and the spread above method by which such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretionamounts were determined. In the event the Borrowers determining such amount, a Lender may use any reasonable averaging and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexattribution methods.
Appears in 1 contract
Sources: Loan and Security Agreement (Safety Components International Inc)
Changed Circumstances. In (a) If prior to the event thatfirst day of any Interest Period:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the Administrative Agent shall have determined in good faith (which determination shall be final conclusive and conclusivebinding upon the Borrower) that that, by reason of circumstances affecting the relevant market, adequate and fair reasonable means do not exist for ascertaining Adjusted Term SOFR or the LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with Eurocurrency Rate for any applicable law or governmental regulationCurrency for such Interest Period, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not having the force of law); or
(ii) the LIBOR Administrative Agent shall have received notice from the Majority Lenders or the Majority Multicurrency Lenders, as the case may be, that Adjusted Term SOFR or the Eurocurrency Rate shall no longer represent for any applicable Currency determined or to be determined for such Interest Period will not adequately and fairly reflect the effective cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Loans during such Interest Period, the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the Lenders for U.S. dollar deposits as soon as practicable thereafter. If such notice is given (w) any EurodollarSOFR Loans or Multicurrency Loans, as the case may be, in the London interbank marketaffected Currency requested to be made on the first day of such Interest Period shall be made as ABR Loans (in the case of Multicurrency Loans, in an amount equal to the Dollar Equivalent of such requested Multicurrency Loans), provided, that, notwithstanding the provisions of subsection 2.2 or 2.14, the Borrower may cancel the request for such EurodollarSOFR Loan or Multicurrency Loan, as the case may be, by written notice to the Administrative Agent one Business Day prior to the first day of such Interest Period and the Borrower shall not be subject to any liability pursuant to subsection 3.11 with respect to such cancelled request, (x) if the affected Currency is Dollars, any Loans that were to have been converted on the first day of such Interest Period to EurodollarSOFR Loans shall be continued as ABR Loans, (y) if the affected Currency is Dollars, any outstanding EurodollarSOFR Loans shall be converted, on the first day of such Interest Period, to ABR Loans and (z) any Multicurrency Loans in the affected Currency to which such Interest Period relates shall be repaid on the first day of such Interest Period. Until such notice has been withdrawn by the Administrative Agent, no further EurodollarSOFR Loans or Multicurrency Loans in the applicable for deposits affected Currency shall be made or continued as such, nor (if the affected Currency is Dollars) shall the Borrower have the right to convert ABR Loans to EurodollarSOFR Loans.
(i) Notwithstanding anything to the contrary herein or in which they regularly participate; any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election with respect to any applicable then-current Benchmark, and in such eventas applicable, the Administrative Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent Borrower may amend this Agreement to allow election by the Borrowers of replace such Benchmark with one or more Benchmark Replacements (it being understood that all amounts denominated in a LIBOR Pricing Option given currency for which a Benchmark is being replaced shall be suspendedsubject to the same Benchmark Replacement). If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice Any such amendment with respect to a LIBOR Pricing Option, but Benchmark Transition Event will become effective at 5:00 p.m. on the LIBOR Pricing Option requested therein fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not yet gone into effectreceived, by such Pricing Notice shall automatically be deemed time, written notice of objection to be withdrawn and be of no force or effectsuch amendment from Lenders comprising the Majority Lenders. Upon Any such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option amendment with respect to all LIBOR Rate Loans shall be terminatedan Early Opt-in Election will become effective on the date that Lenders comprising the Majority Lenders have delivered to the Administrative Agent written notice that such Majority Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 3.6(b)(i) will occur prior to the applicable Benchmark Transition Start Date.
(ii) In the event that the LIBOR Pricing Option is suspended in accordance connection with the foregoing provisions for more than sixty (60) daysuse, administration, adoption or implementation of a Benchmark Replacement, the Borrowers may request that Administrative Agent will have the right (in consultation with the Borrower) to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party heretoto this Agreement or any other Loan Document.
(iii) The Administrative Agent will promptly notify the Borrower and the Lenders propose of (i) any occurrence of a Benchmark Transition Event or an indexEarly Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the spread above such indeximplementation of any Benchmark Replacement, for determining interest on (iii) the Loans as an alternative to effectiveness of any Benchmark Replacement Conforming Changes in connection with the LIBOR Rateuse, which shall be an index in common usage by United States commercial banks administration, adoption or implementation of a Benchmark Replacement and which shall adequately reflect (iv) the cost commencement or conclusion of funds to the Lendersany Benchmark Unavailability Period. The determination of whether there is an appropriate index meeting Administrative Agent will promptly notify the foregoing requirements, and the determination Borrower of the spread above such indexremoval or reinstatement of any tenor of a Benchmark pursuant to Section 3.6(b)(iv). Any determination, shall decision or election that may be made by agreement of all the Administrative Agent or Lenders pursuant to this Section 3.6(b), including any determination with respect to a tenor, rate or adjustment or of the Lenders occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion. In the event the Borrowers discretion and the Lenders agree on such alternative indexwithout consent from - 47 - any other party heretoto this Agreement or any other Loan Document, appropriate amendments shall be made except, in each case, as expressly required pursuant to this Agreement Section 3.6(b).
(iv) Notwithstanding anything to reflect the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (A) if any then-current Benchmark is a term rate (including the Term SOFR Reference Rate, EURIBOR, BBSY or CDOR) and either (1) any tenor for such agreement Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (2) the regulatory supervisor for the administrator of such Benchmar▇ ▇▇▇ ▇▇▇vided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any particular requirements relating similar or analogous definition) for all Benchmark settings at or after such time to reinstate such alternative index.previously removed tenor
Appears in 1 contract
Changed Circumstances. (a) In the event that:
(ai) on any date on which the Applicable Adjusted LIBOR Rate would otherwise be set the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Interbank Offered Rate, as applicable; the case may be, or
(bii) at any time the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of, or conversion of the any Loan to, a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank market or (B2) compliance by the Administrative Agent or any Lender Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(iiB) the Adjusted LIBOR Rate shall no longer represent the effective cost to the Lenders any Bank for U.S. United States dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option ;
(a) (herein called "AFFECTED LOANS") shall be suspended. If at the time the Administrative Agent so notifies the BorrowersBorrower, the Borrowers have Borrower has previously given the Administrative Agent a Pricing Notice of Borrowing or Conversion with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein has such Loans have not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be the Borrower may borrow Loans of no force a non-affected type by giving a substitute Notice of Borrowing or effectConversion pursuant to Section 2.4. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)) the Borrower shall, the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be terminated. In the event that the LIBOR Pricing Option is suspended paid pursuant to Section 2.15, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or Conversion pursuant to Section 2.4 hereof. The provisions of this Section 2.10(a) shall be applied to the foregoing provisions Borrower so as not to discriminate against the Borrower vis-a-vis other customers of the applicable Bank.
(b) In case any law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects the Administrative Agent or any Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrower or otherwise with respect to the transactions contemplated hereby (except for more than sixty taxes on the overall net income of the Administrative Agent or such Bank imposed by the United States of America or any political subdivision thereof), or
(60ii) daysimposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, the Borrowers may request that the Lenders propose an index, and the spread above Administrative Agent or any Bank (other than such index, for determining interest on the Loans requirements as an alternative to the LIBOR Rate, which shall be an index are already included in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above Adjusted LIBOR Rate), or
(iii) imposes upon the Administrative Agent or any Bank any other condition with respect to its performance under this Agreement or any other Loan Document, and the result of any of the foregoing is to increase the cost to the Administrative Agent or such indexBank, reduce the income receivable by the Administrative Agent or such Bank or impose any expense upon the Administrative Agent or such Bank with respect to any Loans or any payments made under or with respect to the Letters of Credit, the Administrative Agent shall promptly notify the Borrower thereof. The Borrower agrees to pay to the Administrative Agent or such Bank the amount of such increase in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by the Administrative Agent or such Bank of a written statement of such amount and setting forth in reasonable detail the Administrative Agent's or such Bank's calculation thereof, which statement shall be made by agreement deemed true and correct absent manifest error. The provisions of all this Section 2.10(b) shall be applied to the Borrower so as not to discriminate against the Borrower vis-a-vis other customers of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexapplicable Bank.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Mac-Gray Corp)
Changed Circumstances. In the event that:
: (a) on any date day on which the Applicable rate for a LIBOR Rate Loan would otherwise other wise be set set, the Agent Lender shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicablesuch rate; or
or (b) at any time the Agent Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the implementation continuation of the or conversion of any Revolving Credit Loan to a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank applicable market or (B) compliance by any the Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
or (ii) the indices on which the interest rates for LIBOR Rate Loan shall no longer represent the effective cost to the Lenders Lender for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participateparticipates; then, and in any such event, the Agent Lender shall forthwith so notify the Borrowers Lead Borrower thereof. Until the Agent Lender notifies the Borrowers Lead Borrower that the circumstances giving rise to such notice no longer apply, the obligation obli- gation of the Lenders and Lender to make LIBOR Loans of the Agent type affected by such changed circumstances or to allow election by permit the Borrowers of a LIBOR Pricing Option Lead Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended. If at the time the Agent Lender so notifies the BorrowersLead Borrower, the Borrowers have Lead Borrower has previously given the Agent Lender a Pricing Renewal/Conversion Notice with respect to a one or more LIBOR Pricing OptionLoans, but the LIBOR Pricing Option requested therein has such Revolving Credit Loans have not yet gone into effect, such Pricing Notice notifi cation shall automatically be deemed to be withdrawn void and be of no force or effectthe Lead Borrower may borrow Revolving Credit Loans which are Base Margin Loans by giving a sub stitute Renewal/Conversion Notice. Upon such date as shall be specified in such notice (the expiration of the Interest Period for any LIBOR Loan which shall not be earlier than is outstanding on the date of such notice is given)notification, the amount of such LIBOR Pricing Option with respect to all LIBOR Rate Loans Loan shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexthereafter constitute a Base Margin Loan.
Appears in 1 contract
Changed Circumstances. a) In the event that:
(a1) on any date on which the Applicable Adjusted LIBOR Rate would otherwise be set the Agent BANK shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Interbank Offered Rate, as applicable; or
(b2) at any time the Agent BANK shall have determined in good faith (which determination shall be final and conclusive) that:
(ia) the implementation making or continuation of the Loan as a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank LIBOR market or (B2) compliance by any Lender the BANK in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(iib) the Adjusted LIBOR Rate shall no longer represent the effective cost to the Lenders BANK for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participateparticipates; then, and in any such event, the Agent BANK shall forthwith so notify the Borrowers BORROWER thereof. Until the Agent BANK notifies the Borrowers BORROWER that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent BANK to allow election selection by the Borrowers BORROWER of a LIBOR Pricing Option Loans shall be suspended. If at the time the Agent BANK so notifies the BorrowersBORROWER, the Borrowers have BORROWER has previously given the Agent BANK a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost Borrowing and/or Selection of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative index.Interest Period with
Appears in 1 contract
Sources: Loan Agreement (Galileo Corp)
Changed Circumstances. In the event that:
(a) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market market, or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall forthwith so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon If the LIBOR Pricing Option has been made unlawful by any of the circumstances described in Section 2.14(b)(i), then upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, terminated and the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining shall pay all interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree due on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement LIBOR Rate Loans and any particular requirements relating amounts required to such alternative indexbe paid pursuant to Section 4.3.
Appears in 1 contract
Changed Circumstances. (a) In the event that:
(ai) on any date on which the Applicable LIBOR Adjusted Eurodollar Rate would otherwise be set set, the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Interbank Offered Rate, as applicable; or
(bii) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of the LIBOR Pricing Option or conversion of any Loan to a Eurodollar Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank Interbank Eurodollar market or (B2) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(iiB) the LIBOR Adjusted Eurodollar Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable Interbank Eurodollar market for deposits in which they it regularly participate; then, and in such event, the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option participates;
(a) (herein called "Affected Loans") shall be suspended. If at the time the Agent so notifies the BorrowersCompany, the Borrowers have Company has previously given the Agent a Pricing Notice of Borrowing or Conversion with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein has such Loans have not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be the Borrowers may borrow Loans of no force a non-affected type by giving a substitute Notice of Borrowing or effectConversion Pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)) the Company shall, the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be terminated. In the event that the LIBOR Pricing Option is suspended paid pursuant to Section 2.13, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or Conversion purs to Section 2.2 hereof.
(b) In case any law, regulation, treaty or official directive or the foregoing provisions for more than sixty interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (60whether or not having the force of law):
(i) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest subjects any Lender to any tax not in effect on the Loans as an alternative date hereof with respect to payments of principal or interest or any other amounts payable hereunder by the Company or otherwise with respect to the LIBOR Rate, which shall be an index in common usage transactions contemplated hereby (except for taxes on the overall net income of such Lender imposed by the United States commercial banks and which shall adequately reflect of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirementsaccount of, and or loans by, any Lender (other than such requirements as are already included in the determination of the spread above Adjusted Eurodollar Rate), or
(iii) imposes upon any Lender any other condition with respect to its performance under this Agreement, and the result of any of the foregoing is to increase the cost to such indexLender, reduce the income receivable by such Lender or impose any expense upon such Lender with respect to any outstanding Eurodollar Loans, such Lender shall notify the Company thereof. The Borrowers, jointly and severally, agrees to pay to such Lender the amount of such increase in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by such Lender of a statement in the amount and setting forth such Lender's calculation thereof, which statement shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers deemed true and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexcorrect absent manifest error.
Appears in 1 contract
Sources: Credit Agreement (Brookstone Inc)
Changed Circumstances. In (i) The Lender may give the event thatBorrower notice of the occurrence of the following:
(aA) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent The Lender shall have determined in good faith (which determination shall be final and conclusive) on any day on which the rate for a Eurodollar Loan would otherwise be set, that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; orsuch rate.
(bB) at any time the Agent The Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(i1) the implementation The continuation of the LIBOR Pricing Option or conversion of any Revolving Credit Loan to a Eurodollar Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank applicable market or (B) compliance by any the Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or.
(ii2) The indices on which the LIBOR Rate interest rates for Eurodollar Loans are based shall no longer represent the effective cost to the Lenders Lender for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participate; participates.
(ii) In the event that the Lender gives the Borrower notice of an occurrence described in Section 2-21(a), then, and in such event, until the Agent shall so notify the Borrowers thereof. Until the Agent Lender notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the :
(A) The obligation of the Lenders and Lender to make Eurodollar Loans of the Agent type affected by such changed circumstances or to allow election by permit the Borrowers of a LIBOR Pricing Option Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended. If at .
(B) Any notice which the time the Agent so notifies the Borrowers, the Borrowers have previously Borrower had given the Agent a Pricing Notice Lender with respect to a LIBOR Pricing Optionany Eurodollar Loan, but the LIBOR Pricing Option requested therein time for action with respect to which has not yet gone into effectoccurred prior to the Lender’s having given notice pursuant to Section 2-21(a), such Pricing Notice shall automatically be deemed to be withdrawn a request for a Base Rate Loan.
(iii) Notwithstanding the foregoing, the Lender agrees to use its reasonable efforts (consistent with its internal policy and be of no force or effect. Upon legal and regulatory restrictions and so long as such date as shall be specified in such notice (which shall efforts would not be earlier than disadvantageous to it, in its reasonable discretion, in any legal, economic or regulatory manner) to designate a different lending office if the date making of such notice is given), designation would allow the LIBOR Pricing Option with respect Lender or its lending office to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative continue to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexmake Eurodollar Loans.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the a LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender the Bank in good faith with any applicable law or governmental or other applicable regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental or other authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental or other authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders Bank for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they it regularly participateparticipates; then, and in such event, the Agent Bank shall forthwith so notify the Borrowers Company thereof. Until the Agent Bank notifies the Borrowers Company that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent Bank to allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Agent Bank so notifies the BorrowersCompany, the Borrowers have Company has previously given the Agent Bank a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon If circumstances described in clause (b)(i)(B) arise, then upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all any new requests for LIBOR Rate Loans shall be terminated. In , but any existing LIBOR Rate Loans may continue to be maintained through the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination end of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexapplicable Interest Period.
Appears in 1 contract
Changed Circumstances. (a) In the event that:
(ai) on any date on which the Applicable Adjusted LIBOR Rate would otherwise be set set, the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the Adjusted LIBOR Rate, as applicable; or
(bii) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of the or conversion of any Loan to a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank Interbank LIBOR market or (B2) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(iiB) the Adjusted LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable LIBOR market for deposits in which they it regularly participate; then, and in such event, the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option participates;
(a) (herein called "Affected Loans") shall be suspended. If at the time the Agent so notifies the BorrowersCompany, the Borrowers have Company has previously given the Agent a Pricing Notice of Borrowing or Conversion with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein has such Loans have not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be the Borrowers may borrow Loans of no force a non-affected type by giving a substitute Notice of Borrowing or effectConversion Pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice from the Agent (which shall not be earlier than the date such notice is given)) the Company shall, the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be terminated. In the event that the LIBOR Pricing Option is suspended paid pursuant to Section 2.13, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or Conversion pursuant to Section 2.2 hereof.
(b) In case any law, regulation, treaty or official directive or the foregoing provisions for more than sixty interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (60whether or not having the force of law):
(i) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest subjects any Lender to any tax not in effect on the Loans as an alternative date hereof with respect to payments of principal or interest or any other amounts payable hereunder by the Company or otherwise with respect to the LIBOR Rate, which shall be an index in common usage transactions contemplated hereby (except for taxes on the overall net income of such Lender imposed by the United States commercial banks and which shall adequately reflect of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirementsaccount of, and or loans by, any Lender (other than such requirements as are already included in the determination of the spread above Adjusted LIBOR Rate), or
(iii) imposes upon any Lender any other condition with respect to its performance under this Agreement, and the result of any of the foregoing is to increase the cost to such indexLender, reduce the income receivable by such Lender or impose any expense upon such Lender with respect to any outstanding LIBOR Loans, such Lender shall notify the Company thereof. The Borrowers, jointly and severally, agree to pay to such Lender the amount of such increase in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by such Lender of a statement in the amount and setting forth such Lender's calculation thereof, which statement shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers deemed true and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexcorrect absent manifest error.
Appears in 1 contract
Sources: Credit Agreement (Brookstone Inc)
Changed Circumstances. In the event that:
(a) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) If, after the implementation of date hereof, the LIBOR Pricing Option has been made impracticable introduction of, or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with change in, any applicable law or governmental regulation, guideline or order or in the interpretation or change administration thereof by any Governmental Authority governmental authority, central bank or comparable agency charged with the interpretation or administration thereof thereof, or compliance by Bank with any request or directive of any such Governmental Authority (whether or not having the force of law) of such governmental authority, central bank or comparable agency:
1. shall subject Bank to any tax, duty or other charge with respect to this Note or shall change the basis of taxation of payments to Bank of the principal of or interest on this Note or any other amounts due in respect thereof (except for changes in the rate of tax on the overall net income of Bank imposed by any governmental authority); or
2. shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board), special deposit or similar requirement against assets of the Bank, deposits with or for the account of Bank, or credit extended by Bank, or shall impose on Bank or the foreign exchange and interbank markets any other condition affecting the Note; and the result of any of the foregoing is to increase the cost to Bank of maintaining any LIBOR-Based Rate or; to reduce the amount of any sum received or receivable by Bank under this Note in respect of interest at the LIBOR-Based Rate; then the Bank shall promptly notify Borrower of such fact and demand compensation therefor and, within fifteen (15) days after such notice by Bank, Borrower agrees to pay to Bank such additional amount or amounts as will compensate Bank for such increased cost or reduction. Bank will promptly notify Borrower of any event of which it has knowledge which will entitle Bank to compensation pursuant to this Subparagraph 2.4 (j); provided, however, that Bank shall incur no liability whatsoever to Borrower in the event it fails to do so. The amount of such compensation shall be determined, by the Bank, as the amount actually incurred by the Bank as a result of the foregoing. Bank's calculations of any such loss or expense shall be furnished to Borrower and shall be prima evidence thereof.
(ii) If, at any time, Bank shall determine in good faith that, by reason of circumstances affecting the LIBOR Rate foreign exchange and interbank markets generally, deposits in Dollars or Optional Currency in the applicable amounts are not being offered to Bank, then Bank shall promptly give notice thereof to Borrower. Thereafter, until Bank notifies Borrower that such circumstances no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer applyexist, the obligation of Bank to make the Lenders and the Agent LIBOR-Based Rate available to allow election by the Borrowers of a LIBOR Pricing Option Borrower shall be suspended. If , and Borrower shall subject to the following sentence hereof, repay in full the then outstanding principal amount of each portion of an Optional Currency Advance together with accrued interest thereon or in the case of a Dollar Advance bearing interest at a LIBOR Rate repay the time the Agent so notifies the BorrowersLoan in full, the Borrowers have previously given the Agent a Pricing Notice together with respect interest accrued therein and amounts owed under Section 2.4(i), or convert such LIBOR-Based Rate to a LIBOR Pricing OptionPrime-Based Rate in the case of a Dollar Advance. Notwithstanding the foregoing, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option Bank determines that Optional Currency is suspended in accordance with the foregoing provisions for more than sixty (60) daysnot available to it, the Borrowers may request that the Lenders propose an indexBank will make a good faith effort to convert any outstanding Optional Currency Advance to a Dollar Advance, and the spread above Borrower shall be responsible for paying all costs or expenses arising from such indexconversion, including those set forth in Section 2.4(i) hereof.
(iii) If, after the date hereof, the introduction of, or any change in, any applicable law or in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by Bank with any request or directive (whether or not having the force of law) of any such governmental authority, central bank or comparable agency, shall make it unlawful or impossible for determining interest on Bank to honor its obligations hereunder to make or maintain any LIBOR-Based Rate or make an Optional Currency Advance, Bank shall promptly give notice thereof to Borrower. Thereafter, until Bank notifies Borrower that such circumstances no longer exists, (A) the Loans obligations of Bank to make available the LIBOR-Based Rate or Optional Currency Advances and the right of Borrower to convert any rate to a LIBOR-Based Rate or receive Optional Currency Advances shall be suspended, and (B) if Bank may not lawfully continue to maintain a LIBOR-Based Rate or extend Optional Currency Advances, as an alternative the case may be, to the LIBOR Rateend of the then current Interest Period applicable thereto, which the applicable LIBOR-Based Rate in the case of a Dollar Advance shall immediately be an index in common usage by United States commercial banks and which shall adequately reflect converted to a Prime-Based Rate for the cost remainder of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirementssuch Interest Period, and the determination Loan shall, subject to the following sentence hereof, be immediately due in the event of an Optional Currency Advance. Notwithstanding the spread above such indexforegoing, in the event that the Bank determines that Optional Currency is not available to it, the Bank will make a good faith effort to convert any outstanding Optional Currency Advance to a Dollar Advance, and the Borrower shall be made by agreement responsible for paying all costs or expenses arising from such conversion, including those set forth in Section 2.4(i) hereof.
(iv) The provisions of all of Sections 2.4 (i) and (j) shall similarly inure to the Lenders in their sole discretion. In benefit to any party to whom the event the Borrowers and the Lenders agree Lender sells an interest, or participates on such alternative indexinterest herein, appropriate amendments shall be made as authorized pursuant to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexSection 8.9 hereof.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) on any date on which the Applicable LIBOR Rate would otherwise be set the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market market, or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Administrative Agent shall forthwith so notify the Borrowers Borrower thereof. Until the Administrative Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Administrative Agent to allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Administrative Agent so notifies the Borrowers, the Borrowers have previously given the Administrative Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, terminated and the spread above such indexBorrowers, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks jointly and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such indexseverally, shall be made by agreement of pay all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree interest due on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement LIBOR Rate Loans and any particular requirements relating amounts required to such alternative indexbe paid pursuant to Section 4.6.
Appears in 1 contract
Changed Circumstances. In (a) The Agent may give the event thatBorrower notice of the occurrence of the following:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the The Agent shall have determined in good faith (which determination shall be final and conclusive) on any day on which the rate for a Eurodollar Loan would otherwise be set, that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; orsuch rate.
(bii) at any time the The Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation The continuation of the LIBOR Pricing Option or conversion of any Revolving Credit Loan to a Eurodollar Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank applicable market or (B) compliance by the Agent or any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or.
(iiB) The indices on which the LIBOR Rate interest rates for Eurodollar Loans are based shall no longer represent the effective cost to the Lenders Agent or any Lender for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participate; participates.
(b) In the event that the Agent gives the Borrower notice of an occurrence described in Section 2-21(a), then, and in such event, the Agent shall so notify the Borrowers thereof. Until until the Agent notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the :
(i) The obligation of the Lenders Agent and of each Lender to make Eurodollar Loans of the Agent type affected by such changed circumstances or to allow election by permit the Borrowers of a LIBOR Pricing Option Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended. If at .
(ii) Any notice which the time the Agent so notifies the Borrowers, the Borrowers have previously Borrower had given the Agent a Pricing Notice with respect to a LIBOR Pricing Optionany Eurodollar Loan, but the LIBOR Pricing Option requested therein time for action with respect to which has not yet gone into effectoccurred prior to the Agent's having given notice pursuant to Section 2-21(a), such Pricing Notice shall automatically be deemed to be withdrawn a request for a Base Margin Loan.
(c) Notwithstanding the foregoing, each Lender agrees to use its reasonable efforts (consistent with its internal policy and be of no force or effect. Upon legal and regulatory restrictions and so long as such date as shall be specified in such notice (which shall efforts would not be earlier than disadvantageous to it, in its reasonable discretion, in any legal, economic or regulatory manner) to designate a different lending office if the date making of such notice is given), designation would allow the LIBOR Pricing Option with respect Lender or its lending office to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative continue to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexmake Eurodollar Loans.
Appears in 1 contract
Changed Circumstances. In (a) The Agent may give the event thatBorrower notice of the occurrence of the following:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the The Agent shall have determined in good faith (which determination shall be final and conclusive) on any day on which the rate for a Eurodollar Loan would otherwise be set, that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; orsuch rate.
(bii) at any time the The Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation The continuation of the LIBOR Pricing Option any Revolving Credit Loan to a Eurodollar Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank applicable market or (B) compliance by any Lender the Agent in good faith with any applicable law or governmental regulation, guideline or order Requirements of Law or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or.
(iiB) The indices on which the LIBOR Rate interest rates for Eurodollar Loans are based shall no longer represent the effective cost to the Lenders Agent or any Lender for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participate; participates.
(b) In the event that the Agent gives the Borrower notice of an occurrence described in Section 2-21(a), then, and in such event, the Agent shall so notify the Borrowers thereof. Until until the Agent notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the :
(i) The obligation of the Lenders Agent and each Lender to make Eurodollar Loans of the Agent type affected by such changed circumstances or to allow election by permit the Borrowers of a LIBOR Pricing Option Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended. If at .
(c) Notwithstanding the time the Agent foregoing, each Lender agrees to use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, long as such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall efforts would not be earlier than disadvantageous to it, in its reasonable discretion, in any legal, economic or regulatory manner) to designate a different lending office if the date making of such notice is given), the LIBOR Pricing Option with respect designation would allow such Lender or its lending office to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative continue to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexmake Eurodollar Loans.
Appears in 1 contract
Sources: Secured Superpriority Debtor in Possession Loan, Security and Guaranty Agreement (Aeropostale Inc)
Changed Circumstances. In (a) The Agent may give the event thatBorrower notice of the occurrence of the following:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the The Agent shall have determined in good faith (which determination shall be final and conclusive) that on any day on which the rate for a LIBOR Loan would otherwise be set, that, by reason of changes arising after the date of this Agreement affecting the London interbank market, adequate and fair means do not exist for ascertaining such rate on the basis provided for in the definition of LIBOR Offer Rate, as applicable; or.
(bii) at any time the The Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation The continuation of the or conversion of any Revolving Credit Loan to a LIBOR Pricing Option Loan has been made impracticable or /October 28, 1997/ unlawful by (A) the occurrence of a contingency change in law occurring after the date of this Agreement that materially and adversely affects the London interbank applicable market or (B) compliance by the Agent or any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or.
(iiB) The indices on which the interest rates for LIBOR Rate Loans are determined shall no longer represent the effective cost to the Lenders Agent or any Lender for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participate; participates.
(b) In the event that the Agent gives the Borrower notice of an occurrence described in Section 2-17(a), then, and in such event, the Agent shall so notify the Borrowers thereof. Until until the Agent notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the :
(i) The obligation of the Lenders Agent and of each Lender to make LIBOR Loans of the type affected by such changed circumstances or to permit the Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended.
(ii) Any notice which the Borrower had given the Agent with respect to any LIBOR Loan, the time for action with respect to which has not occurred prior to the Agent's having given notice pursuant to Section 2-17(a), shall be deemed at the option of the Agent to allow election by the Borrowers of a LIBOR Pricing Option not having been given and such loan shall be suspended. If at made or continued as, or converted into, as appropriate, a Base Margin Loan.
(iii) Subject to the time the Agent so notifies the Borrowersprovisions of Section 2-10(e), the Borrowers have previously given the Agent a Pricing Notice Borrower may (and shall, with respect to a LIBOR Pricing Optionthe occurrence of any event described in Section 2-17(a)(ii)), but cancel the relevant borrowing or conversion notice on the same date the Borrower was notified of such event, or if the LIBOR Pricing Option requested therein has not yet gone into effectLoan is then outstanding, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than prepay the date such notice is given), the affected LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexLoan.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) on On any date day on which the Applicable rate for a LIBOR Rate Loan would otherwise be set set, the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicableeither such rate; or
(b) at At any time that the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(i) the implementation continuation of or conversion of any Revolving Credit Loan or any portion of the Term Loan to a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank applicable market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not governmental authority having the force of law); or
(ii) the indices on which the interest rates for LIBOR Rate Loans shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they regularly participate; then, and in any such event, the Administrative Agent shall forthwith so notify the Borrowers Lead Borrower thereof. Until the Administrative Agent notifies the Borrowers Lead Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and to make LIBOR Loans of the Agent type affected by such changed circumstances or to allow election by permit the Borrowers Lead Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans or any portion of a LIBOR Pricing Option the Term Loan shall be suspended. If at the time the Administrative Agent so notifies the BorrowersLead Borrower, the Borrowers have Lead Borrower has previously given the Administrative Agent a Pricing Renewal/Conversion Notice with respect to a one or more LIBOR Pricing OptionLoans, but the such LIBOR Pricing Option requested therein has Loans have not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be of no force or effectthe Lead Borrower may only borrow Base Margin Loans and shall furnish a substitute Renewal/Conversion Notice. Upon such date as shall be specified in such notice (the expiration of the Interest Period for any LIBOR Loan which shall not be earlier than is outstanding on the date of such notice is given)notification, the amount of such LIBOR Pricing Option with respect to all LIBOR Rate Loans Loan shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexthereafter constitute a Base Margin Loan.
Appears in 1 contract
Changed Circumstances. In (a) The Agent may give the event thatBorrower notice of the occurrence of the following:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the The Agent shall have determined in good faith (on any day on which determination shall the rate for a LIBOR Loan would otherwise be final and conclusive) that set, that, by reason of changes affecting the London interbank market, adequate and fair means do not exist for ascertaining such rate on the basis provided for in the definition of LIBOR Offer Rate, as applicable; or.
(bii) at any time the The Agent shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation The continuation of the or conversion of any Revolving Credit Loan to a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A) the occurrence of a contingency change in law occurring after the date of this Agreement that materially and adversely affects the London interbank applicable market or (B) compliance by the Agent or any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or.
(iiB) The indices on which the interest rates for LIBOR Rate Loans are determined shall no longer represent the effective cost to the Lenders Agent or any Lender for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participate; participates.
(b) In the event that the Agent gives the Borrower notice of an occurrence described in Section 2-18(a), then, and in such event, the Agent shall so notify the Borrowers thereof. Until until the Agent notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the :
(i) The obligation of the Lenders Agent and of each Lender to make LIBOR Loans of the type affected by such changed circumstances or to permit the Borrower to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended.
(ii) Any notice which the Borrower had given the Agent with respect to any LIBOR Loan, the time for action with respect to which has not occurred prior to the Agent's having given notice pursuant to Section 2-18(a), shall be deemed at the option of the Agent to allow election by the Borrowers of a LIBOR Pricing Option not having been given and such loan shall be suspended. If at made or continued as, or converted into, as appropriate, a Base Margin Loan.
(iii) Subject to the time the Agent so notifies the Borrowersprovisions of Section 2-11, the Borrowers have previously given the Agent a Pricing Notice Borrower may (and shall, with respect to a LIBOR Pricing Optionthe occurrence of any event described in Section ), but cancel the relevant borrowing or conversion notice on the same date the Borrower was notified of such event, or if the LIBOR Pricing Option requested therein has not yet gone into effectLoan is then outstanding, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than prepay the date such notice is given), the affected LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexLoan.
Appears in 1 contract
Changed Circumstances. In (a) in the event that:
(ai) on any date on which the Applicable Adjusted LIBOR Rate would otherwise be set the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the Adjusted LIBOR Rate, as applicable; or
(bii) at any time the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of the or conversion of any Loan to a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank market or (B2) compliance by any Lender the Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(iiB) the Adjusted LIBOR Rate shall no longer represent the effective cost to the Lenders Bank for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participate; then, and in such event, the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option participates;
(a) (herein called "Affected Loans") shall be suspended. If at the -------------- time the Agent Bank so notifies the BorrowersCompany, the Borrowers have Company has previously given the Agent Bank a Pricing Notice of Borrowing or Conversion with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein has such Loans have not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be the Company may borrow Loans of no force a non-affected type by giving a substitute Notice of Borrowing or effectConversion pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)) the Company shall, the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be terminated. In the event that the LIBOR Pricing Option is suspended paid pursuant to Section 2.13, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or Conversion pursuant to Section 2.2 hereof.
(b) in case any law, regulation, treaty or official directive or the foregoing provisions interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects the Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Company or otherwise with respect to the transactions contemplated hereby (except for more than sixty taxes on the overall net income of the Bank imposed by the United States of America or any political subdivision thereof, or
(60ii) daysimposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, the Borrowers may request that the Lenders propose an index, and the spread above Bank (other than such index, for determining interest on the Loans requirements as an alternative to the LIBOR Rate, which shall be an index are already included in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above Adjusted LIBOR Rate), or
(iii) imposes upon the Bank any other condition with respect to its performance under this Agreement, and the result of any of the foregoing is to increase the cost to the Bank, reduce the income receivable by the Bank or impose any expense upon the Bank with respect to any Loans, the Bank shall notify the Company thereof. The Company agrees to pay to the Bank the amount of such indexincrease in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by the Bank of a statement in the amount and setting forth the Bank's calculation thereof, which statement shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers deemed true and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexcorrect absent manifest error.
Appears in 1 contract
Changed Circumstances. In the event that:
(a) on If the introduction of or any change in or in the interpretation of (in each case, after the date on which hereof) any law or regulation makes it unlawful, or any governmental authority asserts, after the Applicable date hereof, that it is unlawful, for any Lender to perform its obligations hereunder to make LIBOR Rate would otherwise be set Loans or to fund or maintain LIBOR Loans hereunder, such Lender shall notify the Administrative Agent of such event and the Administrative Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining notify the LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation Borrowers of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, and the right of the Borrowers to select LIBOR Loans for any subsequent Interest Period or in connection with any subsequent conversion of any Loan shall be suspended until the Administrative Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to causing such notice suspension no longer applyexist, the obligation of the Lenders and the Agent to allow election by Borrowers shall forthwith prepay in full all LIBOR Loans then outstanding and shall pay all interest accrued thereon through the Borrowers date of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies such prepayment or conversion, unless the Borrowers, within three Business Days after such notice from the Administrative Agent, request the conversion of all LIBOR Loans then outstanding into Base Rate Loans; provided, that if the date of such repayment or proposed conversion is not the last day of the Interest Period applicable to such LIBOR Loans, the Borrowers have previously given shall also pay any amount due pursuant to Section 4.10.
(b) If the Administrative Agent a Pricing Notice with respect shall, at least one Business Day before the date of any requested Borrowing or the effective date of any conversion or continuation of an existing Loan to be made or continued as or converted into a LIBOR Pricing Option, but the LIBOR Pricing Option Loan (each such requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed Borrowing made and Loan to be withdrawn and be of no force converted or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is givencontinued, a "Pending Loan"), notify the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event Borrowers that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall will not adequately reflect the cost of funds to the Lenders. The determination Lenders of whether there making or funding such Pending Loan as a LIBOR Loan or that LIBOR is an appropriate index meeting not determinable from any interest rate reporting service of recognized standing, then the foregoing requirementsright of the Borrowers to select a LIBOR Loan for such Pending Loan, any subsequent Loan or in connection with any subsequent conversion or continuation of any Loan shall be suspended until the Administrative Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and the determination of the spread above each Pending Loan and each such indexsubsequent Loan requested to be made, continued or converted shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexor continued as or converted into a Base Rate Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Mastec Inc)
Changed Circumstances. In the event that:
(a) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market market, or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall forthwith so notify the Borrowers Borrower thereof. Until the Agent notifies the Borrowers Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers Borrower of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the BorrowersBorrower, the Borrowers have Borrower has previously given the Agent a Pricing Notice of Continuation/Conversion with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice of Continuation/Conversion shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, terminated and the spread above such index, for determining Borrower shall pay all interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree due on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement LIBOR Rate Loans and any particular requirements relating amounts required to such alternative indexbe paid pursuant to Section 4.7.
Appears in 1 contract
Sources: Credit Agreement (Bright Horizons Family Solutions Inc)
Changed Circumstances. (a) In the event that:
(ai) on any date on which the Applicable LIBOR Adjusted Eurocurrency Rate would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Interbank Offered Rate, as applicable; or
(bii) at any time the Agent or any Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of the LIBOR Pricing Option or conversion of any Loan to a Eurocurrency Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank Eurocurrency market for Dollar or Alternative Currency deposits or (B2) compliance by any Lender Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(iiB) the LIBOR Adjusted Eurocurrency Rate shall no longer represent the effective cost to the Lenders any Bank for U.S. dollar deposits in the London interbank market, as applicable market for Dollar or Alternative Currency deposits in which they it regularly participateparticipates; or
(C) in the case of Eurocurrency Loans denominated in an Alternative Currency, the relevant Alternative Currency is not available in the relevant amounts or for the relevant periods, or that due to national or international financial, political or economic conditions or exchange controls any Bank is no longer willing to make, fund or maintain its Eurocurrency Loans to be made in such Alternative Currency; then, and in any such event, any affected Bank shall endeavor to designate a different Lending Office for the type of Loan affected by the circumstances described in this Section 2.9(a) (herein called "AFFECTED LOANS") if such designation will avoid the contingencies described in this Section 2.9(a) and will not, in the sole opinion of the affected Bank, be disadvantageous to the affected Bank. If the affected Bank is not able to so designate an alternative Lending Office, the Agent shall forthwith so notify the Borrowers Company and each Borrowing Subsidiary thereof. Until the Agent notifies the Borrowers Company and each Borrowing Subsidiary that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent Banks to allow election selection by the Borrowers Company or any Borrowing Subsidiary of a LIBOR Pricing Option Affected Loans shall be suspended. If at the time the Agent so notifies the BorrowersCompany and each Borrowing Subsidiary, the Borrowers have Company or a Borrowing Subsidiary has previously given the Agent a Pricing Notice of Borrowing or Conversion with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein has such Loans have not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be the Company or such Borrowing Subsidiary may borrow Loans of no force a non-affected type by giving a substitute Notice of Borrowing or effectConversion pursuant to Section 2.3 hereof. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)) the Company or applicable Borrowing Subsidiary shall, the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be terminated. In the event that the LIBOR Pricing Option is suspended paid pursuant to Section 2.14, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or Conversion pursuant to Section 2.3 hereof.
(b) In case any law, regulation, treaty or official directive or the foregoing provisions interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law):
(i) subjects any Bank to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Company or otherwise with respect to the transactions contemplated hereby (except for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest taxes on the Loans as an alternative to overall net income of a Bank imposed by the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirementsaccount of, and or loans by, any Bank (other than such requirements as are already included in the determination of the spread above Adjusted Eurocurrency Rate), or
(iii) imposes upon any Bank any other condition with respect to its performance under this Agreement, and the result of any of the foregoing is to increase the cost to such indexBank, reduce the income receivable by such Bank or impose any expense upon such Bank with respect to any Loans, such Bank shall endeavor to designate a different Lending Office for such Loans if such designation will avoid the need for, or reduce the amount of, such cost or reduction and will not, in the sole opinion of such Bank, be disadvantageous to such Bank. If such Bank is not able to so designate an alternative Lending Office, such Bank shall forthwith notify the Company thereof. The Company agrees to pay to any Bank the amount of such increase in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by such Bank of a statement in the amount and setting forth such Bank's calculation thereof, which statement shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers deemed true and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexcorrect absent manifest error.
Appears in 1 contract
Sources: Secured Revolving Credit Agreement (Picturetel Corp)
Changed Circumstances. (a) In the event that:
(ai) on any date on which the Applicable LIBOR Adjusted Eurodollar Rate would otherwise be set the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR London Interbank Offered Rate, as applicable; or
or (bii) at any time the Agent Bank shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of the LIBOR Pricing Option or conversion of any Loan to a Eurodollar Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank Eurodollar market or (B2) compliance by any Lender the Bank in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(iiB) the LIBOR Adjusted Eurodollar Rate shall no longer represent the effective cost to the Lenders Bank for U.S. dollar deposits in the London interbank market, as applicable for deposits in which they regularly participate; then, and in any such event, the Agent Bank shall forthwith so notify the Borrowers each Borrower thereof. Until the Agent Bank notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent Bank to allow election selection by the Borrowers of a LIBOR Pricing Option Eurodollar Loans shall be suspended. If at the time the Agent Bank so notifies the Borrowerseach Borrower, the Borrowers have a Borrower has previously given the Agent Bank a Pricing Notice Loan Request with respect to a LIBOR Pricing Option, one or more Eurodollar Loans but the LIBOR Pricing Option requested therein has such Loans have not yet gone into effect, such Pricing Notice Loan Request shall automatically be deemed to be withdrawn and void and, if the Bank in its discretion continues to be willing to lend to such Borrower, such Borrower may borrow Loans of no a non-affected type by delivering a substitute Loan Request pursuant to Section 2.2(a) hereof.
(b) In case any change in law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force or effect. Upon such date as shall be specified in such notice of law):
(which shall not be earlier than i) subjects the date such notice is given), the LIBOR Pricing Option Bank to any tax with respect to all LIBOR Rate Loans shall be terminated. In payments of principal or interest or any other amounts payable hereunder by any Borrower or otherwise with respect to the event that transactions contemplated hereby (except for taxes on the LIBOR Pricing Option is suspended overall net income of the Bank imposed by the United States of America or any political subdivision thereof), or (ii) imposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in accordance with or for the foregoing provisions for more than sixty (60) daysaccount of, or loans by, the Borrowers may request that the Lenders propose an index, and the spread above Bank (other than such index, for determining interest on the Loans requirements as an alternative to the LIBOR Rate, which shall be an index are already included in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above Adjusted Eurodollar Rate), or (iii) imposes upon the Bank any other condition with respect to its performance under this Agreement, -13- and the result of any of the foregoing is to increase the cost to the Bank, reduce the income receivable by the Bank or impose any expense upon the Bank with respect to any Loans, the Bank shall notify each Borrower thereof. The applicable Borrower(s) agree(s) to pay to the Bank the amount of such indexincrease in cost, reduction in income or additional expense attributable to such Loan or Loans as and when such cost, reduction or expense is incurred or determined, upon presentation by the Bank of a statement in the amount and setting forth the Bank's calculation thereof, which statement shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers deemed true and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexcorrect absent manifest error.
Appears in 1 contract
Sources: Credit Agreement (Gt Global Floating Rate Fund Inc)
Changed Circumstances. In (a) If prior to the event thatfirst day of any Interest Period:
(ai) on any date on which the Applicable LIBOR Rate would otherwise be set the Administrative Agent shall have determined in good faith (which determination shall be final conclusive and conclusivebinding upon the Borrower) that that, by reason of circumstances affecting the relevant market, adequate and fair reasonable means do not exist for ascertaining the LIBOR RateTerm SOFR for such Interest Period, as applicable; or
(b) at any time the Agent shall have determined in good faith (which determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority (whether or not having the force of law); or
(ii) the LIBOR Rate Administrative Agent shall no longer represent have received notice from the effective Majority Lenders that Term SOFR determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Loans during such Interest Period, the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the Lenders as soon as practicable thereafter. If such notice is given (w) any affected SOFR Loans requested to be made on the first day of such Interest Period shall be made as ABR Loans, provided, that, notwithstanding the provisions of subsection 2.2, the Borrower may cancel the request for U.S. dollar deposits such SOFR Loan by written notice to the Administrative Agent one Business Day prior to the first day of such Interest Period and the Borrower shall not be subject to any liability pursuant to subsection 3.11 with respect to such cancelled request, (x) any Loans that were to have been converted on the first day of such Interest Period to SOFR Loans shall be continued as ABR Loans and (y) any outstanding SOFR Loans shall be converted, on the first day of such Interest Period, to ABR Loans. Until such notice has been withdrawn by the Administrative Agent, no further SOFR Loans in Dollars shall be made or continued as such, nor shall the London interbank marketBorrower have the right to convert ABR Loans to SOFR Loans.
(i) Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election with respect to any applicable then-current Benchmark, as applicable for deposits in which they regularly participate; then, and in such eventapplicable, the Administrative Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent Borrower may amend this Agreement to allow election by the Borrowers of replace such Benchmark with one or more Benchmark Replacements (it being understood that all amounts denominated in a LIBOR Pricing Option given currency for which a Benchmark is being replaced shall be suspendedsubject to the same Benchmark Replacement). If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice Any such amendment with respect to a LIBOR Pricing Option, but Benchmark Transition Event will become effective at 5:00 p.m. on the LIBOR Pricing Option requested therein fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not yet gone into effectreceived, by such Pricing Notice shall automatically time, written notice of objection to such amendment from Lenders comprising the Majority Lenders. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Majority Lenders have delivered to the Administrative Agent written notice that such Majority Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 3.6(b)(i) will occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right (in consultation with the Borrower) to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iii) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement and (iv) the commencement or conclusion of any Benchmark Unavailability Period. The Administrative Agent will promptly notify the Borrower of the removal or reinstatement of any tenor of a Benchmark pursuant to subsection 3.6(b)(iv). Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this subsection 3.6(b), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this subsection 3.6(b).
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (A) if any then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (1) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (2) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a given Benchmark, (A) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period denominated in Dollars and, failing that, in the case of any request for any affected SOFR Loans, if applicable, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to ABR Loans in the amount specified therein and (B) any outstanding affected SOFR Loans, if applicable, will be withdrawn and be deemed to have been converted into ABR Loans at the end of no force or effectthe applicable Interest Period. Upon any such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)prepayment or conversion, the LIBOR Pricing Option Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 3.11. During a Benchmark Unavailability Period with respect to all LIBOR Rate Loans shall be terminated. In the event any Benchmark or at any time that the LIBOR Pricing Option a tenor for any then-current Benchmark is suspended in accordance with the foregoing provisions for more than sixty (60) daysnot an Available Tenor, the Borrowers may request component of ABR based upon the then-current Benchmark that is the Lenders propose an indexsubject of such Benchmark Unavailability Period or such tenor for such Benchmark, and the spread above such indexas applicable, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall will not be an index used in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The any determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexBase Rate.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Boston Scientific Corp)
Changed Circumstances. In the event that:
(a) on any date on which the Applicable LIBOR Rate would otherwise be set the Agent shall have determined in good faith (which good faith determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which good faith determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made impracticable or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market market, or (B) compliance by any Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost to the Lenders for U.S. dollar deposits of obtaining the relevant currency in the London interbank market, as applicable for deposits in which they regularly participate; then, and in such event, the Agent shall forthwith so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, terminated and the Borrowers may request that shall pay all interest due on such LIBOR Rate Loans and any amounts required to be paid pursuant to Section 4.3 (except in the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination case of the spread above termination of LIBOR Loans pursuant to Section 2.16(b)(ii) in which case such index, LIBOR Loans shall be made by agreement of all continue until the end of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexapplicable Interest Period).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Gerber Scientific Inc)
Changed Circumstances. In the event that:
(a) on Subject to the provisions of this Agreement, the Borrower shall have the option (A) as of any date on which date, to convert all or any part of Base Margin Loans to, or request that new Revolving Credit Loans be made as, LIBOR Loans of various Interest Periods; (B) as of the Applicable last day of any Interest Period, to continue all or any portion of the relevant LIBOR Loans as LIBOR Loans; (C) as of the last day of any Interest Period, to convert all or any portion of the LIBOR Loans to Base Rate Loans; and (D) at any time, to request new Revolving Credit Loans as Base Rate Loans; provided, that Revolving Credit Loans may not be continued as or converted to LIBOR Loans, if the continuation or conversion thereof would violate the provisions of Sections 2.21(b) or 2.21(c) of this Agreement or if an Event of Default has occurred.
(b) The Agent’s determination of the LIBOR Rate would otherwise as provided above shall be set conclusive. Furthermore, if the Agent shall have determined or the Lenders determines, in good faith (which determination shall be final conclusive), prior to the commencement of any Interest Period that (A) U.S. Dollar deposits of sufficient amount and conclusivematurity for funding the Revolving Credit Loans are not available to the Agent or the Lenders in the London Interbank LIBOR market in the ordinary course of business, or (B) that by reason of circumstances affecting the London Interbank LIBOR market, adequate and fair means do not exist for ascertaining the rate of interest to be applicable to the Revolving Credit Loans requested by the Borrower to be LIBOR RateLoans or the Revolving Credit Loans bearing interest at the rates set forth in this Agreement shall not represent the effective pricing to the Agent for U.S. Dollar deposits of a comparable amount for the relevant period (such as for example, as applicable; or
(b) at any time but not limited to, official reserve requirements required by Regulation D to the extent not given effect in determining the rate), the Agent shall have determined in good faith promptly notify the Borrower and (which determination 1) all existing LIBOR Loans shall convert to Base Rate Loans upon the end of the applicable Interest Period, and (2) no additional LIBOR Loans shall be final and conclusive) thatmade until such circumstances are cured.
(ic) If, after the implementation of date hereof, the LIBOR Pricing Option has been made impracticable introduction of, or unlawful by (A) the occurrence of a contingency that materially and adversely affects the London interbank market or (B) compliance by any Lender change in good faith with any applicable law law, treaty, rule, regulation or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority charged with in the interpretation or administration thereof by any governmental authority or with any request central bank or directive other fiscal, monetary or other authority having jurisdiction over the Agent, the Lenders or their respective lending offices (a “Regulatory Change”), shall, in the opinion of counsel to the Agent or the Lenders, make it unlawful for the Agent or the Lenders to make or maintain LIBOR Loans, then the Agent shall promptly notify the Borrower and (A) the LIBOR Loans shall immediately convert to Base Rate Loans on the last Business Day of the then existing Interest Period or on such earlier date as required by law and (B) no additional LIBOR Loans shall be made until such circumstance is cured.
(d) The Borrower shall reimburse each Lender on demand for any loss incurred or to be incurred by it in the reemployment of the funds released (i) resulting from any prepayment (for any reason whatsoever, including, without limitation, conversion to Base Margin Loans or acceleration by virtue of, and after, the occurrence and continuance of an Event of Default) of any LIBOR Loan required or permitted under this Agreement, if such Governmental Authority LIBOR Loan is prepaid other than on the last day of the Interest Period for such LIBOR Loan or (ii) in the event that after the Borrower delivers a notice of borrowing under Section 2.5(b)(ii) in respect of LIBOR Loans, such LIBOR Loans are not made on the first day of the Interest Period specified in such notice of borrowing for any reason other than a breach by such Lender of its obligations hereunder. Such loss shall be the amount as reasonably determined by such Lender as the excess, if any, of (A) the amount of interest which would have accrued to such Lender on the amount so paid or not borrowed at a rate of interest equal to the LIBOR Rate (including the LIBOR Margin) for such Loan, for the period from the date of such payment or failure to borrow to the last day (x) in the case of a payment or refinancing with Base Margin Loans other than on the last day of the Interest Period for such LIBOR Loan, of the then current Interest Period for such LIBOR Loan, or (y) in the case of such failure to borrow, of the Interest Period for such Loan which would have commenced on the date of such failure to borrow, over (B) the amount of interest which would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the London interbank market (collectively, “Breakage Costs”). Any Lender demanding reimbursement for such loss shall deliver to the Borrower from time to time one or more certificates setting forth the amount of such loss as determined by such Lender and setting forth in reasonable detail the manner in which such amount was determined.
(e) If any Regulatory Change (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by, the Agent or the Lenders; (B) subject the Agent, the Lenders or the LIBOR Loans to any Tax or change the basis of taxation of payments to the Agent or the Lenders of principal or interest due from the Borrower to the Agent or the Lenders hereunder (other than a change in the taxation of the overall net income of the Agent or the Lenders); oror (C) impose on the Agent or the Lenders any other condition regarding the LIBOR Loans or the Agent’s or any Lender’s funding thereof, and the Agent or Lenders shall determine (which determination shall be conclusive) that the result of the foregoing is to increase the cost to the Agent or the Lenders of making or maintaining the LIBOR Loans or to reduce the amount of principal or interest received by the Agent or Lenders hereunder, then the Borrower shall pay to the Agent or the Lenders, on demand, such additional amounts as the Agent or the Lenders shall, from time to time, determine are sufficient to compensate and indemnify the Agent or Lenders from such increased cost or reduced amount,
(iif) The Agent and Lenders shall receive payments of amounts of principal of and interest with respect to the LIBOR Loans free and clear of, and without deduction for, any Taxes. If (A) the Agent or Lenders shall be subject to any Tax in respect of any LIBOR Loans or any part thereof or, (B) the Borrower shall be required to withhold or deduct any Tax from any such amount, the LIBOR Rate applicable to such LIBOR Loans shall no longer represent be adjusted by the effective cost Agent or Lenders to reflect all additional costs incurred by the Agent or Lenders for U.S. dollar deposits in connection with the London interbank market, as applicable for deposits in which they regularly participate; then, payment by the Agent or Lenders or the withholding by the Borrower of such Tax and in the Borrower shall provide the Agent or Lenders with a statement detailing the amount of any such eventTax actually paid by the Borrower. Determination by the Agent or Lenders of the amount of such costs shall be conclusive. If after any such adjustment any part of any Tax paid by the Agent or Lenders is subsequently recovered by the Agent or Lenders , the Agent or Lenders, as applicable, shall reimburse the Borrower to the extent of the amount so notify the Borrowers thereofrecovered. Until A certificate of an officer of the Agent notifies setting forth the Borrowers that the circumstances giving rise to amount of such notice no longer apply, the obligation of the Lenders recovery and the Agent to allow election by the Borrowers of a LIBOR Pricing Option basis therefor shall be suspended. If at the time the Agent so notifies the Borrowers, the Borrowers have previously given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the LIBOR Pricing Option requested therein has not yet gone into effect, such Pricing Notice shall automatically be deemed to be withdrawn and be of no force or effect. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall be terminated. In the event that the LIBOR Pricing Option is suspended in accordance with the foregoing provisions for more than sixty (60) days, the Borrowers may request that the Lenders propose an index, and the spread above such index, for determining interest on the Loans as an alternative to the LIBOR Rate, which shall be an index in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above such index, shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexconclusive.
Appears in 1 contract
Changed Circumstances. (a) In the event that:
(ai) on any date on which the Applicable LIBOR Effective LIBO Rate would otherwise be set the Agent Lender shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the LIBOR Ratesuch rate, as applicable; or
(bii) at any time the Agent Lender shall have determined in good faith (which determination shall be final and conclusive) that:
(iA) the implementation making or continuation of the or conversion of any Loan to a LIBOR Pricing Option Loan has been made impracticable or unlawful by (A1) the occurrence of a contingency that materially and adversely affects the London interbank eurodollar market or (B2) compliance by any the Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof or with any request or directive of any such Governmental Authority governmental authority (whether or not having the force of law); or
(iiB) the LIBOR Effective LIBO Rate shall no longer represent the effective cost to the Lenders Lender for U.S. dollar deposits in the London interbank market, as applicable market for deposits in which they it regularly participateparticipates; then, and in such event, the Agent shall so notify the Borrowers thereof. Until the Agent notifies the Borrowers that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders and the Agent to allow election by the Borrowers of a LIBOR Pricing Option 19 -15-
(a) (herein called "Affected Loans") shall be suspended. If at the time the Agent Lender so notifies the BorrowersBorrower, the Borrowers have Borrower has previously given the Agent Lender a Pricing Notice of Borrowing or Conversion with respect to a LIBOR Pricing Option, one or more Affected Loans but the LIBOR Pricing Option requested therein has such Loans have not yet gone into effect, such Pricing Notice notification shall automatically be deemed to be withdrawn void and be the Borrower may borrow Loans of no force a non-affected type by giving a substitute Notice of Borrowing or effectConversion pursuant to Section 2.2 hereof. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given)) the Borrower shall, the LIBOR Pricing Option with respect to all LIBOR Rate Loans shall the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be terminated. In the event that the LIBOR Pricing Option is suspended paid pursuant to Section 2.17, and may borrow a Loan of another type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or Conversion pursuant to Section 2.2 hereof.
(b) In case any law, regulation, treaty or official directive or the foregoing provisions interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central Lender or other governmental authority (whether or not having the force of law):
(i) subjects the Lender to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrower or otherwise with respect to the transactions contemplated hereby (except for more than sixty taxes on the overall net income of the Lender imposed by the United States of America or any political subdivision thereof), or
(60ii) daysimposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, the Borrowers may request that the Lenders propose an index, and the spread above Lender (other than such index, for determining interest on the Loans requirements as an alternative to the LIBOR Rate, which shall be an index are already included in common usage by United States commercial banks and which shall adequately reflect the cost of funds to the Lenders. The determination of whether there is an appropriate index meeting the foregoing requirements, and the determination of the spread above Effective LIBO Rate), or
(iii) imposes upon the Lender any other condition with respect to its performance under this Agreement, and the result of any of the foregoing is to increase the cost to the Lender, reduce the income receivable by the Lender or impose any expense upon the Lender with respect to any Loans, the Lender shall notify the Borrower thereof. The Borrower agrees to pay to the Lender the amount of such indexincrease in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by the Lender of a statement in the amount and setting forth the Lender's calculation thereof, which statement shall be made by agreement of all of the Lenders in their sole discretion. In the event the Borrowers deemed true and the Lenders agree on such alternative index, appropriate amendments shall be made to this Agreement to reflect such agreement and any particular requirements relating to such alternative indexcorrect absent manifest error.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Bird Corp)