Additional Fees and Costs. (a) So long as any Bank or Participant is required to maintain reserves against LIBOR Obligations under Regulation D, the Company shall pay to any such Bank or Participant, with respect to each LIBOR Advance outstanding to the Company, a LIBOR fee (determined as though the LIBOR Lending Office of such Bank or Participant had funded one hundred percent (100%) of such Bank's Pro Rata Share of, or such Participant's share in, such LIBOR Advance in the Designated Market) calculated as follows: (i) [LIBOR Rate applicable to the LIBOR Advance] divided by (1 minus rate [expressed as a decimal] of reserve requirements under Regulation D in respect of LIBOR Obligations)] minus [LIBOR Rate applicable to the LIBOR Advance], times (ii) [average daily unpaid principal amount of such Bank's pro rata portion of or such Participant's share in such LIBOR Advance] times [number of days in the applicable Interest Period divided by three hundred sixty (360)]. Notification that a LIBOR fee is payable shall be given within a reasonable time after discovery by the loan officers responsible for the credit or share hereunder that such LIBOR fee is payable, and may be given by telephone if communicated to a Designated Officer or, if an attempt has been made by such Bank or Participant in good faith to communicate with any Designated Officer and such attempt is not successful, then to a Responsible Official of the Company and, in either case, confirmed within a reasonable time by letter. The LIBOR fee with respect to each LIBOR Advance or share therein shall be payable on the later of: (i) the last day of the applicable Interest Period; or (ii) five (5) calendar days after the relevant Bank or Participant notifies the Company in writing of the amount due, except that (x) if notification of the amount due is not given within ninety (90) days after such LIBOR fee becomes payable with respect to the applicable Interest Period, then the Company shall be allowed to pay such amount within thirty (30) days after the date upon which notification is given; and (y) on final payment of any Note in full, any LIBOR fee with respect to any LIBOR Advance made thereunder shall be payable on the date of payment of such Note. In determining the amount of any LIBOR fee payable pursuant to this Section, each Bank or Participant shall take into account any transitional adjustment or phase-in provisions of the reserve requirements which would reduce the reserve requirements otherwise applicable to LIBOR Obligations during the applicable Interest Period, and in the event of any change or variation in the reserve requirements during the applicable Interest Period, each Bank or Participant may use any reasonable averaging or attribution method which it deems appropriate. The determination by each Bank or Participant of the amount of any LIBOR fee payable to it shall be conclusive in the absence of manifest error. Terms used in Regulation D shall have the same meanings when used in this Section. (b) If, after the date of this Agreement, the occurrence of any Special Circumstance shall: (i) Subject any Bank or Participant, or the LIBOR Lending Office of any Bank or Participant, to any tax, duty or other charge or cost, or shall change the basis of taxation of payments to any Bank or Participant of the principal of or interest on such Bank's Pro Rata Share of, or such Participant's share in, any Designated Advance, the Note(s) of such Bank, or the obligation of such Bank to permit Designated Advances or the obligation of any Participant to acquire any share therein (except for changes in the rate of tax on the overall net income of such Bank or Participant, or the LIBOR Lending Office of such Bank or Participant, imposed by the jurisdiction in which the principal executive office or LIBOR Lending Office of such Bank or Participant is located); (ii) Impose, modify or deem applicable any reserve (including without limitation any reserve imposed by the Board of Governors of the Federal Reserve System), special deposit or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Bank or Participant or the LIBOR Lending Office of any Bank or Participant; or (iii) Impose on any Bank or Participant, the LIBOR Lending Office of any Bank or Participant, or the Designated Market any other condition affecting any Bank's pro rata portion of or any Participant's share in, any Designated Advance, the Note(s) of such Bank, or the obligation of such Bank to permit Designated Advances or the obligation of any Participant to acquire any share therein, or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing would, in the reasonable opinion of such Bank or Participant, increase the cost to such Bank or Participant or the LIBOR Lending Office of such Bank or Participant of permitting, making, maintaining or funding any Designated Advance or share therein, or with respect to such Bank's Pro Rata Share of, or such Participant's share in, any Designated Advance, the Note(s) of such Bank, or its obligation to permit Designated Advances or the obligation of any Participant to acquire any share therein, or reduce the amount of any sum received or receivable by such Bank or Participant or the LIBOR Lending Office of such Bank or Participant with respect to any Designated Advance, such Bank's Pro Rata Share of, or such Participant's share in, any Designated Advance, the Note(s) of such Bank, or its obligation to permit Designated Advances or the obligation of any Participant to acquire any share therein (assuming such Bank or Participant [or, in the case of a LIBOR Advance, the LIBOR Lending Office of such Bank or Participant] had funded one hundred percent (100%) of such Bank's Pro Rata Share of, or such Participant's share in, such Designated Advance in the Designated Market), then, upon demand by such Bank or Participant, which demand shall be made within a reasonable time after discovery by the loan officers responsible for the credit or share hereunder that such increased cost or reduction has been incurred, the Company shall pay to such Bank or Participant such additional amount or amounts (taking into account any LIBOR fee paid to such Bank or Participant by the Company pursuant to Section 4.4(a)) as will compensate such Bank or Participant for such increased cost or reduction. Notwithstanding the foregoing, if demand is not made within ninety (90) days after such increased cost or reduction is incurred, then the Company shall be allowed to pay such amount within thirty (30) days after the date upon which demand is made. The Company hereby indemnifies each Bank and Participant against, and agrees to hold each Bank and Participant harmless from and reimburse each Bank and Participant on demand for, all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by such Bank or Participant in connection with this Agreement, any share in Advances made pursuant to this Agreement or any of the rights, obligations or transactions provided for or contemplated herein as a result of the occurrence of any Special Circumstance. A statement of any Bank or Participant claiming compensation under this Section 4.4(b) and setting forth the additional amount or amounts to be paid to it pursuant to this Agreement shall be conclusive in the absence of manifest error or knowing misrepresentation. (c) If, after the date of this Agreement, the occurrence of any Special Circumstance shall, in the reasonable opinion of any Bank or Participant, make it unlawful, impossible or impractical for such Bank or Participant or the LIBOR Lending Office of such Bank or Participant to permit, make, maintain or fund any Designated Advance or share therein, or materially restrict the authority of such Bank or Participant to purchase or sell, or to take eurocurrency deposits or nonpersonal time deposits, or to determine or charge interest rates based upon the LIBOR Rate, then such Bank's obligation to make LIBOR Advances shall be suspended for the duration of such illegality, impossibility or impracticality and such Bank shall immediately give notice thereof to the Company. Upon receipt of such notice, the outstanding principal amount of all LIBOR Advances shall be automatically converted to Prime Rate Advances on either: (i) the last day of the applicable Interest Period(s) if such Bank or Participant may lawfully continue to maintain and fund such LIBOR Advances or shares therein to such day(s); or (ii) immediately if such Bank or Participant may not lawfully continue to fund and maintain such LIBOR Advances to such day(s); provided that in such event the conversion shall not be subject to payment of a prepayment fee pursuant to Section 4.4(e). (d) If, with respect to any proposed Designated Advance: (i) it is illegal for any Bank to offer the LIBOR Rate, or for any Participant to hold an interest in LIBOR Rate Advances; (ii) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market generally which are beyond the reasonable control of the Banks or Participants, deposits in dollars (in the applicable amounts) are not being offered to each of the Banks or Participants in the Designated Market for the applicable Interest Period; or (iii) the Administrative Agent reasonably determines that the LIBOR Rate: (A) does not represent the effective pricing to such Banks or Participants for deposits in dollars in the Designated Market in the relevant amount for the applicable Interest Period; or (B) will not adequately and fairly reflect the cost to such Banks or Participants of making the applicable LIBOR Advance or share therein; then the Administrative Agent shall forthwith give notice thereof to the Company, whereupon until the Administrative Agent notifies the Company that the circumstances giving rise to such suspension no longer exist, the obligation of the Banks to permit (and the Company's right to designate) any future LIBOR Advances shall be suspended. (e) Upon payment or prepayment of any Designated Advance, or conversion of a Designated Advance (other than a conversion required under Section 4.4(c)), on a day other than the last day of the applicable Interest Period (whether involuntarily, by reason of acceleration or otherwise), the Company shall pay to the Administrative Agent a prepayment fee calculated as follows (and determined as though one hundred percent (100%) of the Designated Advance had been funded in the Designated Market): (i) the Interest Differential with respect to such Designated Advance (which, when received by the Administrative Agent, shall be distributed by the Administrative Agent to the Banks according to their respective Pro Rata Shares); plus (ii) All out-of-pocket expenses incurred by the Banks and reasonably attributable to such payment or prepayment (which, when received by the Administrative Agent, shall be distributed by the Administrative Agent to the Banks in amounts corresponding to their respective out-of-pocket expenses); provided that no prepayment fee shall be payable (and no credit or rebate shall be required) under the foregoing provisions of this Section 4.4(e) if the sum of the foregoing clauses (i) and (ii) is not positive. The determination by the Administrative Agent of the amount of any prepayment fee payable under this Section 4.4(e) shall be conclusive in the absence of manifest error. (f) The Company hereby indemnifies each Bank and Participant against, and agrees to hold each Bank and Participant harmless from and reimburse each Bank and Participant on demand (which demand must be made within a reasonable time after -44- 51 discovery by the loan officers responsible for the credit or share hereunder) for, all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages (including without limitation any interest paid or that would be paid by any Bank or Participant for deposits in dollars in the Designated Market and any loss sustained or that would be sustained by any Bank or Participant in connection with the reemployment of funds) incurred or sustained, or that would be incurred or sustained, by each such Bank or Participant, as reasonably determined by each such Bank or Participant, as a result of any failure of the Company to consummate, or the failure of any condition required for the consummation or effectiveness of, any Designated Advance to the Company on the date or in the amount requested by the Company, such indemnification to be determined as though each Bank and Participant (or, in the case of a LIBOR Advance, the LIBOR Lending Office of each Bank and Participant) had or would have funded one hundred percent (100%) of its Pro Rata Share of such Designated Advance in the Designated Market. Notwithstanding the foregoing, if demand is not made within ninety (90) days after the date upon which the event giving rise to liability of the Company under this subparagraph (f) occurs, then the Company shall be allowed to pay the amounts demanded within thirty (30) days after the date upon which demand is made. The determination of such amount by each Bank and Participant shall be conclusive in the absence of manifest error. (g) In the event that any Bank or Participant shall have determined that after the Effective Date, the adoption of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, or any change therein or in the interpretation or application thereof after the Effective Date, or the compliance by such Bank or Participant with any request or directive regarding capital adequacy (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) made by any central bank or governmental agency or body having jurisdiction after the Effective Date, does or shall have the effect of (i) increasing the amount of capital required to be maintained by such Bank or Participant with respect to Advances made by such Bank to the Company or shares in Advances to the Company held by such Participant and/or the Pro Rata Share of such Bank or obligations of such Participant to fund portions of the Commitment, or (ii) increasing the cost to such Bank with respect to making any Advance made to the Company by such Bank or issuing or maintaining the Pro Rata Share of such Bank, or increasing the cost to such Participant of funding or issuing or maintaining its share in any Advance to the Company or the Commitment, in each case by an amount in excess of the amount required on the date hereof, then the Company shall from time to time, within fifteen (15) days after written notice and demand from such Bank or Participant, which notice and demand shall be given and made within a reasonable time, pay to such Bank or Participant, additional amounts sufficient to compensate such Bank or Participant for the cost of such additional required capital. A certificate, evidencing the basis of such calculation in reasonable detail, as to the amount of such cost, submitted to the Company by such Bank or Participant, shall, absent manifest error, be final, conclusive and binding for all purposes. No Bank or Participant shall have the right to collect payments from the Company pursuant to this Section 4.4(g) unless it is the policy of such Bank or Participant, at the time of such collection, to collect similar payments from borrowers (if any) who are comparable to the Company in connection with credit facilities to such borrowers which credit facilities are similar to those made available pursuant to this Agreement, where the documents governing such credit facilities establish the right of such Bank or Participant to collect such payments. (h) Each Bank and Participant shall, at the request of the Company, provide reasonable detail to the Company regarding the manner in which the amount of any payment requested by it pursuant to the provisions of Section 4.4 has been determined.
Appears in 1 contract
Sources: Acquisition Term Loan Agreement (Tic Acquisition LLC)
Additional Fees and Costs. (a) 2.9.1. So long as any Bank Lender, any Assignee Lender or Participant is required to maintain reserves against LIBOR Obligations under Regulation D, the Company Borrower shall pay to any such Bank Lender, Assignee Lender or Participant, with respect to each LIBOR Advance outstanding to the CompanyRate Loan, a fee (hereinafter referred to as a "LIBOR fee Fee") (determined as though the LIBOR Lending Office of such Bank Lender, Assignee Lender or Participant had funded one hundred percent (100%) of such BankLender's Pro Rata Share pro rata portion of, or such Assignee Lender's or Participant's share in, such LIBOR Advance Rate Loan in the Designated Market) calculated as follows:
(i) [LIBOR Rate applicable to the LIBOR AdvanceRate Loan] divided by [(1 minus rate [expressed as a decimal] of reserve requirements under Regulation D in respect of LIBOR Obligations)] minus [LIBOR Rate applicable to the LIBOR AdvanceRate Loan], times
(ii) [average daily unpaid principal amount of such BankLender's pro rata portion of or such Assignee Lender's or Participant's share in such LIBOR AdvanceRate Loan] times [number of days in the applicable Interest Borrowing Period divided by three hundred sixty (360)]. Notification that a LIBOR fee Fee is payable shall be given within a reasonable time after discovery by the loan officers responsible for the credit or share hereunder that such LIBOR fee Fee is payable, and may be given by telephone if communicated to a Designated Responsible Officer or, if an attempt has been made by such Bank Lender, Assignee Lender or Participant in good faith to communicate with any Designated Responsible Officer and such attempt is not successful, then to a Responsible Official another responsible official of the Company Borrower and, in either case, confirmed within a reasonable time by letterletter to the Borrower, with a copy of such letter sent concurrently to the Agent. The LIBOR fee Fee with respect to each LIBOR Advance Rate Loan or share therein shall be payable on the later of: (i) the last day of the applicable Interest Borrowing Period; or (ii) five (5) calendar days after the relevant Bank Lender, Assignee Lender or Participant notifies the Company in writing Borrower of the amount due, except that (x) if notification of the amount due is not given within ninety (90) days after such LIBOR fee Fee becomes payable with respect to the applicable Interest Borrowing Period, then the Company Borrower shall be allowed to pay such amount within thirty (30) days after the date upon which notification is given; and (y) on final payment of any Note in full, any LIBOR fee Fee with respect to any LIBOR Advance Rate Loan made thereunder not earlier paid or earlier payable pursuant hereto shall be payable on the date of payment of such Note. In determining the amount of any LIBOR fee Fee payable pursuant to this Section, each Bank Lender, Assignee Lender or Participant shall take into account any transitional adjustment or phase-in provisions of the reserve requirements which would reduce the reserve requirements otherwise applicable to LIBOR Obligations during the applicable Interest Borrowing Period, and in the event of any change or variation in the reserve requirements during the applicable Interest Borrowing Period, each Bank Lender, Assignee Lender or Participant may use any reasonable averaging or attribution method which it deems appropriate. The determination by each Bank Lender, Assignee Lender or Participant of the amount of any LIBOR fee Fee payable to it shall be conclusive in the absence of manifest error. Terms used in Regulation D shall have the same meanings when used in this Section.
(b) 2.9.2. If, after the date of this Agreement, the occurrence of any Special Circumstance shall:
(i) Subject any Bank Lender, Assignee Lender or Participant, or the LIBOR Lending Office of any Bank Lender, any Assignee Lender or Participant, to any tax, duty or other charge or cost, or shall change the basis of taxation of payments to any Bank Lender, Assignee Lender or Participant of the principal of or interest on such BankLender's Pro Rata Share pro rata portion of, or such Assignee Lender's or Participant's share in, any Designated AdvanceLIBOR Rate Loan, the Note(s) any Note of such BankLender, or the obligation of such Bank Lender to permit Designated Advances LIBOR Rate Loans or the obligation of any Assignee Lender or Participant to acquire any share therein (except for changes in the rate of tax on the overall net income of such Bank Lender, such Assignee Lender or Participant, or the LIBOR Lending Office office of such Bank Lender, Assignee Lender or Participant, imposed by the jurisdiction in which the principal executive office or LIBOR Lending Office office of such Bank Lender, Assignee Lender or Participant is located);
(ii) Impose, modify or deem applicable any reserve (including without limitation any reserve imposed by the Board of Governors of the Federal Reserve SystemSystem other than with regard to Regulation D), special deposit or similar requirements against assets of, deposits with or for the account of, or credit extended by, any Bank Lender, any Assignee Lender or Participant or the LIBOR Lending Office office of any Bank Lender, Assignee Lender or Participant; or
(iii) Impose on any Bank Lender, Assignee Lender or Participant, the LIBOR Lending Office of any Bank Lender, Assignee Lender or Participant, or the Designated Market any other condition affecting any BankLender's pro rata portion of or any Assignee Lender's or Participant's share in, any Designated AdvanceLIBOR Rate Loan, the Note(s) any Note of such BankLender, or the obligation of such Bank Lender to permit Designated Advances LIBOR Rate Loans or the obligation of any Assignee Lender or Participant to acquire any share therein, or this Agreement, or shall otherwise affect any of the same; and the result of any of the foregoing would, in the reasonable opinion of such Bank Lender, Assignee Lender or Participant, increase the cost to such Bank Lender, Assignee Lender or Participant or the LIBOR Lending Office of such Bank Lender, Assignee Lender or Participant of permitting, making, maintaining or funding any Designated Advance LIBOR Rate Loan or share therein, or with respect to such BankLender's Pro Rata Share pro rata portion of, or such Assignee Lender's or Participant's share in, any Designated AdvanceLIBOR Rate Loan, the Note(s) any Note of such BankLender, or its obligation to permit Designated Advances LIBOR Rate Loans or the obligation of any Assignee Lender or Participant to acquire any share therein, or reduce the amount of any sum received or receivable by such Bank Lender, Assignee Lender or Participant or the LIBOR Lending Office of such Bank Lender, Assignee Lender or Participant with respect to any Designated AdvanceLIBOR Rate Loan, such BankLender's Pro Rata Share pro rata portion of, or such Assignee Lender's or Participant's share in, any Designated AdvanceLIBOR Rate Loan, the Note(s) any Note of such BankLender, or its obligation to permit Designated Advances LIBOR Rate Loans or the obligation of any Assignee Lender or Participant to acquire any share therein (assuming such Bank Lender, Assignee Lender or Participant [or, in the case of a LIBOR AdvanceRate Loan, the LIBOR Lending Office of such Bank Lender, Assignee Lender or Participant] had funded one hundred percent ([100%) ] of such BankLender's Pro Rata Share pro rata portion of, or such Assignee Lender's or Participant's share in, such Designated Advance LIBOR Rate Loan in the Designated Market), then, upon within ten (10) calendar days following notice and demand by such Bank Lender, Assignee Lender or Participant, which demand shall be made within a reasonable time after discovery by the loan officers responsible for the credit or share hereunder that such increased cost or reduction has been incurred, the Company Borrower shall pay to such Bank Lender, Assignee Lender or Participant such additional amount or amounts (taking into account any LIBOR fee Fee paid to such Bank Lender, Assignee Lender or Participant by the Company Borrower pursuant to Section 4.4(a)2.9.1.) as will compensate such Bank Lender, Assignee Lender or Participant for such increased cost or reduction. Notwithstanding the foregoingAny Lender, if demand is not made within ninety (90) days after such increased cost or reduction is incurred, then the Company shall be allowed to pay such amount within thirty (30) days after the date upon which demand is made. The Company hereby indemnifies each Bank and Participant against, and agrees to hold each Bank and Participant harmless from and reimburse each Bank and Participant on demand for, all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages incurred or sustained by such Bank Assignee Lender or Participant in connection with this Agreement, any share in Advances made pursuant to this Agreement or any of the rights, obligations or transactions provided for or contemplated herein as a result of the occurrence of any Special Circumstance. A statement of any Bank or Participant claiming compensation under this Section 4.4(b) and setting forth the additional amount or amounts to be paid to it pursuant to this Agreement shall be conclusive in the absence of manifest error or knowing misrepresentation.
(c) If, after the date of this Agreement, the occurrence of any Special Circumstance shall, in the reasonable opinion of any Bank or Participant, make it unlawful, impossible or impractical for such Bank or Participant or the LIBOR Lending Office of such Bank or Participant to permit, make, maintain or fund any Designated Advance or share therein, or materially restrict the authority of such Bank or Participant to purchase or sell, or to take eurocurrency deposits or nonpersonal time deposits, or to determine or charge interest rates based upon the LIBOR Rate, then such Bank's obligation to make LIBOR Advances shall be suspended for the duration of such illegality, impossibility or impracticality and such Bank shall immediately give notice thereof to the Company. Upon receipt of such notice, the outstanding principal amount of all LIBOR Advances shall be automatically converted to Prime Rate Advances on either: (i) the last day of the applicable Interest Period(s) if such Bank or Participant may lawfully continue to maintain and fund such LIBOR Advances or shares therein to such day(s); or (ii) immediately if such Bank or Participant may not lawfully continue to fund and maintain such LIBOR Advances to such day(s); provided that in such event the conversion shall not be subject to payment of a prepayment fee pursuant to Section 4.4(e).
(d) If, with respect to any proposed Designated Advance:
(i) it is illegal for any Bank to offer the LIBOR Rate, or for any Participant to hold an interest in LIBOR Rate Advances;
(ii) the Administrative Agent reasonably determines that, by reason of circumstances affecting the Designated Market generally which are beyond the reasonable control of the Banks or Participants, deposits in dollars (in the applicable amounts) are not being offered to each of the Banks or Participants in the Designated Market for the applicable Interest Period; or
(iii) the Administrative Agent reasonably determines that the LIBOR Rate: (A) does not represent the effective pricing to such Banks or Participants for deposits in dollars in the Designated Market in the relevant amount for the applicable Interest Period; or (B) will not adequately and fairly reflect the cost to such Banks or Participants of making the applicable LIBOR Advance or share therein; then the Administrative Agent shall forthwith give notice thereof to the Company, whereupon until the Administrative Agent notifies the Company that the circumstances giving rise to such suspension no longer exist, the obligation of the Banks to permit (and the Company's right to designate) any future LIBOR Advances shall be suspended.
(e) Upon payment or prepayment of any Designated Advance, or conversion of a Designated Advance (other than a conversion required under Section 4.4(c)), on a day other than the last day of the applicable Interest Period (whether involuntarily, by reason of acceleration or otherwise), the Company shall pay to the Administrative Agent a prepayment fee calculated as follows (and determined as though one hundred percent (100%) of the Designated Advance had been funded in the Designated Market):
(i) the Interest Differential with respect to such Designated Advance (which, when received by the Administrative Agent, shall be distributed by the Administrative Agent to the Banks according to their respective Pro Rata Shares); plus
(ii) All out-of-pocket expenses incurred by the Banks and reasonably attributable to such payment or prepayment (which, when received by the Administrative Agent, shall be distributed by the Administrative Agent to the Banks in amounts corresponding to their respective out-of-pocket expenses); provided that no prepayment fee shall be payable (and no credit or rebate shall be required) under the foregoing provisions of this Section 4.4(e) if the sum of the foregoing clauses (i) and (ii) is not positive. The determination by the Administrative Agent of the amount of any prepayment fee payable under this Section 4.4(e) shall be conclusive in the absence of manifest error.
(f) The Company hereby indemnifies each Bank and Participant against, and agrees to hold each Bank and Participant harmless from and reimburse each Bank and Participant on makes demand (which demand must be made within a reasonable time after -44- 51 discovery by the loan officers responsible for the credit or share hereunder) for, all costs, expenses, claims, penalties, liabilities, losses, legal fees and damages (including without limitation any interest paid or that would be paid by any Bank or Participant for deposits in dollars in the Designated Market and any loss sustained or that would be sustained by any Bank or Participant in connection with the reemployment of funds) incurred or sustained, or that would be incurred or sustained, by each such Bank or Participant, as reasonably determined by each such Bank or Participant, as a result of any failure of the Company to consummate, or the failure of any condition required for the consummation or effectiveness of, any Designated Advance to the Company on the date or in the amount requested by the Company, such indemnification to be determined as though each Bank and Participant (or, in the case of a LIBOR Advance, the LIBOR Lending Office of each Bank and Participant) had or would have funded one hundred percent (100%) of its Pro Rata Share of such Designated Advance in the Designated Market. Notwithstanding the foregoing, if demand is not made within ninety (90) days after the date upon which the event giving rise to liability of the Company under this subparagraph (f) occurs, then the Company shall be allowed to pay the amounts demanded within thirty (30) days after the date upon which demand is made. The determination of such amount by each Bank and Participant shall be conclusive in the absence of manifest error.
(g) In the event that any Bank or Participant shall have determined that after the Effective Date, the adoption of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, or any change therein or in the interpretation or application thereof after the Effective Date, or the compliance by such Bank or Participant with any request or directive regarding capital adequacy (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) made by any central bank or governmental agency or body having jurisdiction after the Effective Date, does or shall have the effect of (i) increasing the amount of capital required to be maintained by such Bank or Participant with respect to Advances made by such Bank to the Company or shares in Advances to the Company held by such Participant and/or the Pro Rata Share of such Bank or obligations of such Participant to fund portions of the Commitment, or (ii) increasing the cost to such Bank with respect to making any Advance made to the Company by such Bank or issuing or maintaining the Pro Rata Share of such Bank, or increasing the cost to such Participant of funding or issuing or maintaining its share in any Advance to the Company or the Commitment, in each case by an amount in excess of the amount required on the date hereof, then the Company shall from time to time, within fifteen (15) days after written notice and demand from such Bank or Participant, which notice and demand shall be given and made within a reasonable time, pay to such Bank or Participant, additional amounts sufficient to compensate such Bank or Participant Borrower for the cost of such additional required capital. A certificate, evidencing the basis of such calculation in reasonable detail, as to the amount of such cost, submitted to the Company by such Bank or Participant, shall, absent manifest error, be final, conclusive and binding for all purposes. No Bank or Participant shall have the right to collect payments from the Company payment pursuant to this Section 4.4(g) unless it is the policy of such Bank or Participant, at the time of such collection, to collect similar payments from borrowers (if any) who are comparable to the Company in connection with credit facilities to such borrowers which credit facilities are similar to those made available pursuant to this Agreement, where the documents governing such credit facilities establish the right of such Bank or Participant to collect such payments2.9.
(h) Each Bank and Participant shall, at the request of the Company, provide reasonable detail to the Company regarding the manner in which the amount of any payment requested by it pursuant to the provisions of Section 4.4 has been determined.
Appears in 1 contract
Sources: Revolving Credit Agreement (Ps Business Parks Inc/Ca)