Libor Option. (a) Provided that no Project Default then exists with respect to any individual Construction Loan, Borrower shall have the right to elect (assuming each of the conditions set forth in subsections (i), (ii) and (iii) below have been satisfied), from time to time during the term of such Construction Loan, to have (y) all or any part, but in no event less than One Hundred Thousand and 00/100 Dollars ($100,000.00), of the then outstanding principal indebtedness evidenced by the Notes executed and delivered in connection with such Construction Loan treated as a LIBOR Portion, and/or to convert (z) the whole or not less than One Hundred Thousand and 00/100 Dollars ($100,000.00) of any existing LIBOR Portion converted to a new LIBOR Portion upon the Contract Payment Date for such LIBOR Portion, subject to: (i) the receipt by Agent of notice of such election, together with an election of a Contract Period, not less than three (3) Business Days prior to the date requested by Borrower for commencement of the new Contract required to cover the new LIBOR Portion; (ii) the availability to Agent and/or Lenders of a Contract to cover such new LIBOR Portion effective on the requested date of commencement for the Contract Period; and (iii) Borrower's payment of any Additional Cost, Funding Cost and Taxes incurred by Agent or any Lender from time to time attributable to such new LIBOR Portion. (b) Interest on each LIBOR Portion shall be payable, in arrears, on the first day of each month. Interest due on any LIBOR Portion on the date of any termination, breakage or other disposition of its covering Contract shall be paid to Agent and received by Agent in immediately available funds, at the place designated by Agent, by 2:00 p.m. on the date such interest is due to Agent or any Lender by reason of the termination, breakage or other disposition in accordance with the foregoing. (c) Any portion of the principal balance of any Construction Loan from time to time outstanding that is not a LIBOR Portion shall be considered Prime-Based Funds accruing interest at the Prime-Based Rate. (d) If, after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change 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 Agent or any Lender with any request or directive, whether or not having the force of law of any such authority, central bank or comparable agency, shall make it unlawful or impossible for Agent or any Lender to make, maintain or fund a LIBOR Portion, Agent shall so notify Borrower. Upon receipt of such notice, Borrower shall repay in full the then outstanding principal amount of each affected LIBOR Portion, together with accrued interest thereon, on either (i) the last day of the then current Contract Period applicable thereto if Agent and Lenders may lawfully continue to maintain and fund such LIBOR Portion to such day or (ii) immediately if Agent or any Lender may not lawfully continue to fund and maintain such LIBOR Portion to such day. Concurrently with repaying each such LIBOR Portion and provided no Default or Event of Default is then in existence with respect to the affected Construction Loan, Borrower may, at its option, reborrow from Lenders an equal principal amount, at the Prime-Based Rate, in accordance with and subject to the terms and conditions hereof and of the Loan Documents executed and delivered in connection with the affected Construction Loan. (e) In the event that any Change in Law reduces or shall have the effect of reducing the rate of return on a Lender's capital or the capital of its parent corporation (by an amount such Lender deems material) as a consequence of the Facility or any Construction Loan to a level below that which such Lender or its parent corporation could have achieved but for such Change in Law (taking into account such Lender's policies and the policies of its parent corporation with respect to capital adequacy), and provided all affected Advances are not required to be repaid by Borrower pursuant to Section 3.5(d) above, then Borrower shall, within fifteen (15) days after written notice and demand from such Lender, pay to such Lender additional amounts sufficient to compensate such Lender, or its parent corporation, for such reduction. Any determination by a Lender under this Section 3.5(e) and any certificate as to the amount of such reduction given to Borrower by such Lender shall be final, conclusive and binding for all purposes, absent error. (f) If, as a result of any Change in Law any Taxes are required to be withheld or deducted from any amount payable to Agent or any Lender with respect to a LIBOR Portion, the amount payable will be increased to the amount which, after deduction from such increased amount of all Taxes required to be withheld or deducted therefrom, will yield to Agent and/or Lenders the amount stated to be payable with respect thereto. Borrower will execute and deliver to Agent at its request such further instruments as may be necessary or desirable to give full force and effect to any such increase, including, but not limited to, replacement promissory notes to be issued in exchange for the Notes theretofore issued. Borrower will also hold Agent and each Lender harmless and indemnify each of them for any stamp or other Taxes with respect to the preparation, execution, delivery, performance or enforcement of the Loan Documents for each Construction Loan (all of which shall be included in "Taxes"). Borrower will, upon the request of Agent, provide Agent with evidence satisfactory to it of the payment of any Taxes. If any of the Taxes are paid by Agent or any Lender, Borrower will, upon demand of Agent or such Lender, reimburse Agent or such Lender for such payments, together with any interest, penalties and expenses in connection therewith, plus interest thereon at the Default Interest Rate from the date such payment or payments are made to the date of reimbursement by Borrower. (g) Borrower and Agent shall from time to time, upon written request from the other, deliver a written acknowledgment in form reasonably satisfactory to the requesting party indicating, as of the date thereof: (a) the respective portions of each Construction Loan which bear interest at the Prime-Based Rate, (b) the respective portions of each Construction Loan which bear interest at the LIBOR-Based Rate, and the LIBOR-Based Rate(s) applicable thereto, and (c) the respective Conversion Date(s) applicable to any and all LIBOR Portion(s).
Appears in 1 contract
Sources: Construction Loan Facility Agreement (Centerpoint Properties Trust)
Libor Option. (aac) Provided that Borrowers may, at any time and from time to time, so long as no Project Event of Default then exists with respect has occurred and is continuing, elect to any individual Construction Loan, Borrower shall have the right to elect (assuming each interest on all or a portion of the conditions set forth in subsections Loans be charged at a rate of interest based upon the LIBOR Rate (the "LIBOR Option") by notifying Agent prior to 11:00 a.m. at least three Business Days prior to (i) the proposed borrowing date of a Loan (as provided in Section 2.3), (ii) and in the case of the conversion of a Base Rate Loan to a LIBOR Rate Loan, the commencement of the proposed Interest Period or (iii) below have been satisfied), from time to time during in the term of such Construction Loan, to have (y) all or any part, but in no event less than One Hundred Thousand and 00/100 Dollars ($100,000.00), case of the then outstanding principal indebtedness evidenced by the Notes executed and delivered in connection with such Construction continuation of a LIBOR Rate Loan treated as a LIBOR PortionRate Loan, and/or to convert (z) the whole or not less than One Hundred Thousand and 00/100 Dollars ($100,000.00) of any existing LIBOR Portion converted to a new LIBOR Portion upon the Contract Payment Date for such LIBOR Portion, subject to:
(i) the receipt by Agent of notice of such election, together with an election of a Contract Period, not less than three (3) Business Days prior to the date requested by Borrower for commencement of the new Contract required to cover the new LIBOR Portion;
(ii) the availability to Agent and/or Lenders of a Contract to cover such new LIBOR Portion effective on the requested date of commencement for the Contract Period; and
(iii) Borrower's payment of any Additional Cost, Funding Cost and Taxes incurred by Agent or any Lender from time to time attributable to such new LIBOR Portion.
(b) Interest on each LIBOR Portion shall be payable, in arrears, on the first day of each month. Interest due on any LIBOR Portion on the date of any termination, breakage or other disposition of its covering Contract shall be paid to Agent and received by Agent in immediately available funds, at the place designated by Agent, by 2:00 p.m. on the date such interest is due to Agent or any Lender by reason of the termination, breakage or other disposition in accordance with the foregoing.
(c) Any portion of the principal balance of any Construction Loan from time to time outstanding that is not a LIBOR Portion shall be considered Prime-Based Funds accruing interest at the Prime-Based Rate.
(d) If, after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change 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 Agent or any Lender with any request or directive, whether or not having the force of law of any such authority, central bank or comparable agency, shall make it unlawful or impossible for Agent or any Lender to make, maintain or fund a LIBOR Portion, Agent shall so notify Borrower. Upon receipt of such notice, Borrower shall repay in full the then outstanding principal amount of each affected LIBOR Portion, together with accrued interest thereon, on either (i) the last day of the then current Contract Interest Period applicable thereto if (the "LIBOR Deadline"). Notice of Borrowers’ election of the LIBOR Option for a permitted portion of the Loans and an Interest Period pursuant to this Section 2.12 shall be made by delivery to Agent and Lenders may lawfully continue to maintain and fund such LIBOR Portion to such day of (A) a Notice of Borrowing (in the case of the initial making of a 122846886v7 Loan) in accordance with Section 2.3 or (iiB) immediately if Agent or any Lender may not lawfully continue a LIBOR Notice prior to fund and maintain such the LIBOR Portion to such dayDeadline. Concurrently with repaying Promptly upon its receipt of each such LIBOR Portion Notice, Agent shall provide a copy thereof to each of the Lenders. Each LIBOR Notice shall be irrevocable and provided no Default or binding on the Borrowers. (ad) Interest on LIBOR Rate Loans shall be payable in accordance with Section 2.6. On the last day of each applicable Interest Period, unless the Borrowers have elected to convert such Loans to Base Rate Loans, such LIBOR Rate Loans shall continue as LIBOR Rate Loans with the same Interest Period (to the extent permitted pursuant to the definition of Interest Period). Notwithstanding anything to the contrary contained in this Agreement, at any time that an Event of Default has occurred and is then in existence with respect to continuing, the affected Construction Loan, Borrower may, at its option, reborrow from Lenders an equal principal amount, at the Prime-Based Rate, in accordance with and subject to the terms and conditions hereof and of the Loan Documents executed and delivered in connection with the affected Construction Loan.
(e) In the event that any Change in Law reduces or Borrowers no longer shall have the effect of reducing the rate of return on a Lender's capital or the capital of its parent corporation (by an amount such Lender deems material) as a consequence option to request that any portion of the Facility or any Construction Loan to a level below that which such Lender or its parent corporation could have achieved but for such Change in Law (taking into account such Lender's policies and the policies of its parent corporation with respect to capital adequacy), and provided all affected Advances are not required to be repaid by Borrower pursuant to Section 3.5(d) above, then Borrower shall, within fifteen (15) days after written notice and demand from such Lender, pay to such Lender additional amounts sufficient to compensate such Lender, or its parent corporation, for such reduction. Any determination by a Lender under this Section 3.5(e) and any certificate as to the amount of such reduction given to Borrower by such Lender shall be final, conclusive and binding for all purposes, absent error.
(f) If, as a result of any Change in Law any Taxes are required to be withheld or deducted from any amount payable to Agent or any Lender with respect to a LIBOR Portion, the amount payable will be increased to the amount which, after deduction from such increased amount of all Taxes required to be withheld or deducted therefrom, will yield to Agent and/or Lenders the amount stated to be payable with respect thereto. Borrower will execute and deliver to Agent at its request such further instruments as may be necessary or desirable to give full force and effect to any such increase, including, but not limited to, replacement promissory notes to be issued in exchange for the Notes theretofore issued. Borrower will also hold Agent and each Lender harmless and indemnify each of them for any stamp or other Taxes with respect to the preparation, execution, delivery, performance or enforcement of the Loan Documents for each Construction Loan (all of which shall be included in "Taxes"). Borrower will, upon the request of Agent, provide Agent with evidence satisfactory to it of the payment of any Taxes. If any of the Taxes are paid by Agent or any Lender, Borrower will, upon demand of Agent or such Lender, reimburse Agent or such Lender for such payments, together with any interest, penalties and expenses in connection therewith, plus interest thereon at the Default Interest Rate from the date such payment or payments are made to the date of reimbursement by Borrower.
(g) Borrower and Agent shall from time to time, upon written request from the other, deliver a written acknowledgment in form reasonably satisfactory to the requesting party indicating, as of the date thereof: (a) the respective portions of each Construction Loan which Loans bear interest at the Prime-Based Rate, (b) LIBOR Rate and Agent shall have the respective portions right to convert the interest rate on all outstanding LIBOR Rate Loans to the rate of each Construction Loan which bear interest at the LIBOR-Based Rate, and the LIBOR-Based Rate(s) applicable thereto, and (c) the respective Conversion Date(s) then applicable to any and all LIBOR Portion(s)Base Rate Loans of the same type hereunder prior to the last day of the then current Interest Period.
Appears in 1 contract
Libor Option. (a) Provided that The Borrowers may, at any time and from time to time, so long as no Project Default then exists with respect or Event of Default has occurred and is continuing, elect to any individual Construction Loan, Borrower shall have the right to elect (assuming each interest on all or a portion of the conditions set forth in subsections Loans be charged at a rate of interest based upon the LIBOR Rate (the “LIBOR Option”) by notifying the Administrative Agent prior to 11:00 a.m. (New York City time) at least 3 Business Days prior to (i) the proposed borrowing date of a Loan (as provided in Section 2.02), (ii) and in the case of the conversion of a Reference Rate Loan to a LIBOR Rate Loan, the commencement of the proposed Interest Period or (iii) below have been satisfied), from time to time during in the term case of such Construction the continuation of a LIBOR Rate Loan as a LIBOR Rate Loan, to have (y) all or any part, but in no event less than One Hundred Thousand and 00/100 Dollars ($100,000.00), the last day of the then outstanding principal indebtedness evidenced current Interest Period (the “LIBOR Deadline”). Notice of the Borrowers’ election of the LIBOR Option for a permitted portion of the Loans and an Interest Period pursuant to this Section 2.07(a) shall be made by delivery to the Notes executed and delivered Administrative Agent of (A) a Notice of Borrowing (in connection the case of the initial making of a Loan) in accordance with such Construction Loan treated as Section 2.02 or (B) a LIBOR Portion, and/or to convert (z) the whole or not less than One Hundred Thousand and 00/100 Dollars ($100,000.00) of any existing LIBOR Portion converted to a new LIBOR Portion upon the Contract Payment Date for such LIBOR Portion, subject to:
(i) the receipt by Agent of notice of such election, together with an election of a Contract Period, not less than three (3) Business Days Notice prior to the date requested by Borrower for commencement LIBOR Deadline. Promptly upon its receipt of each such LIBOR Notice, the Administrative Agent shall provide notice thereof to each of the new Contract required to cover the new Lenders. Each LIBOR Portion;
(ii) the availability to Agent and/or Lenders of a Contract to cover such new LIBOR Portion effective Notice shall be irrevocable and binding on the requested date of commencement for the Contract Period; and
(iii) Borrower's payment of any Additional Cost, Funding Cost and Taxes incurred by Agent or any Lender from time to time attributable to such new LIBOR PortionBorrowers.
(b) Interest on each LIBOR Portion Rate Loans shall be payable, payable in arrears, on accordance with Section 2.04(d). On the first last day of each monthapplicable Interest Period, unless the Borrowers properly have exercised the LIBOR Option with respect thereto, the interest rate applicable to such LIBOR Rate Loans automatically shall convert to the rate of interest then applicable to Reference Rate Loans of the same type hereunder. Interest due on At any time that a Default or an Event of Default has occurred and is continuing, the Borrowers no longer shall have the option to request that any portion of the Loans bear interest at the LIBOR Portion on Rate and the date of any termination, breakage or other disposition of its covering Contract Administrative Agent shall be paid to Agent and received by Agent in immediately available fundshave the right, at the place designated by direction of the Origination Agent, by 2:00 p.m. to convert the interest rate on all outstanding LIBOR Rate Loans to the date such rate of interest is due then applicable to Agent or any Lender by reason Reference Rate Loans of the termination, breakage or other disposition in accordance with the foregoing.
(c) Any portion of the principal balance of any Construction Loan from time to time outstanding that is not a LIBOR Portion shall be considered Prime-Based Funds accruing interest at the Prime-Based Rate.
(d) If, after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change 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 Agent or any Lender with any request or directive, whether or not having the force of law of any such authority, central bank or comparable agency, shall make it unlawful or impossible for Agent or any Lender to make, maintain or fund a LIBOR Portion, Agent shall so notify Borrower. Upon receipt of such notice, Borrower shall repay in full the then outstanding principal amount of each affected LIBOR Portion, together with accrued interest thereon, same type hereunder on either (i) the last day of the then current Contract Period applicable thereto if Agent Interest Period.
(c) Notwithstanding anything to the contrary contained in this Agreement, the Borrowers (i) shall have not more than three (3) LIBOR Rate Loans in effect at any given time, and Lenders may lawfully continue to maintain and fund such LIBOR Portion to such day or (ii) immediately if Agent only may exercise the LIBOR Option for LIBOR Rate Loans of at least $500,000 and integral multiples of $100,000 in excess thereof.
(d) The Borrowers may prepay LIBOR Rate Loans at any time; provided, however, that in the event that LIBOR Rate Loans are prepaid on any date that is not the last day of the Interest Period applicable thereto, including as a result of any mandatory prepayment pursuant to Section 2.05(c) or any Lender may not lawfully continue to fund and maintain such LIBOR Portion to such day. Concurrently with repaying each such LIBOR Portion and provided no Default application of payments or Event proceeds of Default is then in existence with respect to the affected Construction Loan, Borrower may, at its option, reborrow from Lenders an equal principal amount, at the Prime-Based Rate, Collateral in accordance with and subject Section 4.03 or Section 4.04 or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof, the Borrowers shall indemnify, defend, and conditions hereof hold the Agents and of the Loan Documents executed Lenders and delivered their participants harmless against any and all Funding Losses in connection accordance with the affected Construction LoanSection 2.08.
(e) In Anything to the event that contrary contained herein notwithstanding, neither any Change in Law reduces Agent nor any Lender, nor any of their participants, is required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues at the LIBOR Rate. The provisions of this Article II shall have the effect of reducing the rate of return on a Lender's capital or the capital of its parent corporation (by an amount such Lender deems material) apply as a consequence of the Facility or any Construction Loan to a level below that which such if each Lender or its parent corporation could have achieved but for such Change in Law (taking into account such Lender's policies and the policies of its parent corporation with respect to capital adequacy), and provided all affected Advances are not required to be repaid by Borrower pursuant to Section 3.5(d) above, then Borrower shall, within fifteen (15) days after written notice and demand from such Lender, pay to such Lender additional amounts sufficient to compensate such Lender, or its parent corporation, for such reduction. Any determination by a Lender under this Section 3.5(e) and participants had match funded any certificate Obligation as to which interest is accruing at the LIBOR Rate by acquiring eurodollar deposits for each Interest Period in the amount of such reduction given to Borrower by such Lender shall be final, conclusive and binding for all purposes, absent errorthe LIBOR Rate Loans.
(f) If, as a result If prior to the commencement of any Change in Law Interest Period for any Taxes are required to be withheld or deducted from any amount payable to LIBOR Rate Loan,
(i) the Administrative Agent or any Lender with respect to a shall have determined that adequate and reasonable means do not exist for ascertaining LIBOR Portion, the amount payable will be increased to the amount which, after deduction from for such increased amount of all Taxes required to be withheld or deducted therefrom, will yield to Agent and/or Lenders the amount stated to be payable with respect thereto. Borrower will execute and deliver to Agent at its request such further instruments as may be necessary or desirable to give full force and effect to any such increaseInterest Period, including, but not limited towithout limitation, replacement promissory notes because the Administrative Agent determines that either inadequate or insufficient quotations of the London interbank offered rate exist or the use of “LIBOR” has been discontinued (any determination of Administrative Agent to be issued in exchange conclusive and binding absent manifest error), or
(ii) the Administrative Agent shall have received notice from the Required Lenders that LIBOR does not adequately and fairly reflect the cost to such Lenders of making, funding or maintaining their LIBOR Rate Loans for such Interest Period, then the Notes theretofore issued. Borrower will also hold Administrative Agent and each Lender harmless and indemnify each of them for any stamp or other Taxes with respect shall give written notice to the preparationAdministrative Borrower and to the Lenders as soon as practicable thereafter. Until the Administrative Agent shall notify the Administrative Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, execution, delivery, performance or enforcement (A) the obligations of the Loan Documents for each Construction Loan (all of which Lenders to make LIBOR Rate Loans, or to continue or convert outstanding Loans as or into LIBOR Rate Loans, shall be included in "Taxes"). Borrower will, upon suspended and (B) all such affected Loans shall be converted into Reference Rate Loans on the request of Agent, provide Agent with evidence satisfactory to it last day of the payment of any Taxes. If any of the Taxes are paid by Agent or any Lender, Borrower will, upon demand of Agent or such Lender, reimburse Agent or such Lender for such payments, together with any interest, penalties and expenses in connection therewith, plus interest thereon at the Default then current Interest Rate from the date such payment or payments are made to the date of reimbursement by Borrower.
(g) Borrower and Agent shall from time to time, upon written request from the other, deliver a written acknowledgment in form reasonably satisfactory to the requesting party indicating, as of the date thereof: (a) the respective portions of each Construction Loan which bear interest at the Prime-Based Rate, (b) the respective portions of each Construction Loan which bear interest at the LIBOR-Based Rate, and the LIBOR-Based Rate(s) Period applicable thereto, and (c) the respective Conversion Date(s) applicable to any and all LIBOR Portion(s).
Appears in 1 contract
Libor Option. (a) Provided that The Borrower may, at any time and from time to time, so long as no Project Default then exists with respect or Event of Default has occurred and is continuing, elect to any individual Construction Loan, Borrower shall have the right to elect (assuming each interest on all or a portion of the conditions set forth in subsections Loans be charged at a rate of interest based upon the LIBOR Rate (the "LIBOR Option") by notifying the Administrative Agent prior to 11:00 a.m. (New York City time) at least 3 Business Days prior to (i) the proposed borrowing date of a Loan (as provided in Section 2.02), (ii) and in the case of the conversion of a Reference Rate Loan to a LIBOR Rate Loan, the commencement of the proposed Interest Period or (iii) below have been satisfied), from time to time during in the term case of such Construction the continuation of a LIBOR Rate Loan as a LIBOR Rate Loan, to have (y) all or any part, but in no event less than One Hundred Thousand and 00/100 Dollars ($100,000.00), the last day of the then outstanding principal indebtedness evidenced current Interest Period (the "LIBOR Deadline"). Notice of the Borrower's election of the LIBOR Option for a permitted portion of the Loans and an Interest Period pursuant to this Section 2.07(a) shall be made by delivery to the Notes executed and delivered Administrative Agent of (A) a Notice of Borrowing (in connection the case of the initial making of a Loan) in accordance with such Construction Loan treated as Section 2.02 or (B) a LIBOR Portion, and/or to convert Notice (z) in the whole or not less than One Hundred Thousand and 00/100 Dollars ($100,000.00) of any existing LIBOR Portion converted to a new LIBOR Portion upon the Contract Payment Date for such LIBOR Portion, subject to:
(i) the receipt by Agent of notice of such election, together with an election case of a Contract Period, not less than three (3conversion or a continuation of a Loan) Business Days prior to the date requested LIBOR Deadline (or by Borrower for commencement telephonic notice received by the Administrative Agent before the LIBOR Deadline (to be confirmed by delivery to the Administrative Agent of a LIBOR Notice received by the Administrative Agent prior to 5:00 p.m. (New York City time) on the same day)). Promptly upon its receipt of each such LIBOR Notice, the Administrative Agent shall provide a copy thereof to each of the new Contract required to cover the new Lenders. Each LIBOR Portion;
(ii) the availability to Agent and/or Lenders of a Contract to cover such new LIBOR Portion effective Notice shall be irrevocable and binding on the requested date of commencement for the Contract Period; and
(iii) Borrower's payment of any Additional Cost, Funding Cost and Taxes incurred by Agent or any Lender from time to time attributable to such new LIBOR Portion.
(b) Interest on each LIBOR Portion Rate Loans shall be payable, payable in arrears, on accordance with Section 2.04(c). On the first last day of each month. applicable Interest due on any Period, unless the Borrower properly has exercised the LIBOR Portion on Option with respect thereto, the date interest rate applicable to such LIBOR Rate Loans automatically shall convert to the rate of any termination, breakage or other disposition of its covering Contract shall be paid interest then applicable to Agent and received by Agent in immediately available funds, at the place designated by Agent, by 2:00 p.m. on the date such interest is due to Agent or any Lender by reason Reference Rate Loans of the terminationsame type hereunder. At any time that a Default or an Event of Default has occurred and is continuing, breakage or other disposition in accordance with the foregoing.
(c) Any Borrower no longer shall have the option to request that any portion of the principal balance of any Construction Loan from time to time outstanding that is not a LIBOR Portion shall be considered Prime-Based Funds accruing Loans bear interest at the Prime-Based Rate.
(d) If, after LIBOR Rate and the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change 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 Agent or any Lender with any request or directive, whether or not having the force of law of any such authority, central bank or comparable agency, shall make it unlawful or impossible for Agent or any Lender to make, maintain or fund a LIBOR Portion, Administrative Agent shall so notify Borrower. Upon receipt have the right to convert the interest rate on all outstanding LIBOR Rate Loans to the rate of such notice, Borrower shall repay in full interest then applicable to Reference Rate Loans of the then outstanding principal amount of each affected LIBOR Portion, together with accrued interest thereon, on either (i) same type hereunder prior to the last day of the then current Contract Period applicable thereto if Agent Interest Period.
(c) Notwithstanding anything to the contrary contained in this Agreement, the Borrower (i) shall have not more than 5 LIBOR Rate Loans in effect at any given time, and Lenders may lawfully continue to maintain and fund such LIBOR Portion to such day or (ii) immediately if Agent only may exercise the LIBOR Option for LIBOR Rate Loans of at least $500,000 and integral multiples of $100,000 in excess thereof.
(d) The Borrower may prepay LIBOR Rate Loans at any time; provided, however, that in the event that LIBOR Rate Loans are prepaid on any date that is not the last day of the Interest Period applicable thereto, including as a result of any mandatory prepayment pursuant to Section 2.05(c) or any Lender may not lawfully continue to fund and maintain such LIBOR Portion to such day. Concurrently with repaying each such LIBOR Portion and provided no Default application of payments or Event proceeds of Default is then in existence with respect to the affected Construction Loan, Borrower may, at its option, reborrow from Lenders an equal principal amount, at the Prime-Based Rate, Collateral in accordance with and subject Section 4.03 or Section 4.04 or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof, the Borrower shall indemnify, defend, and conditions hereof hold the Agents and of the Loan Documents executed Lenders and delivered their participants harmless against any and all Funding Losses in connection accordance with the affected Construction LoanSection 2.08.
(e) In Anything to the event that contrary contained herein notwithstanding, neither any Change in Law reduces Agent nor any Lender, nor any of their participants, is required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues at the LIBOR Rate. The provisions of this Article II shall have the effect of reducing the rate of return on a Lender's capital or the capital of its parent corporation (by an amount such Lender deems material) apply as a consequence of the Facility or any Construction Loan to a level below that which such if each Lender or its parent corporation could have achieved but for such Change in Law (taking into account such Lender's policies and the policies of its parent corporation with respect to capital adequacy), and provided all affected Advances are not required to be repaid by Borrower pursuant to Section 3.5(d) above, then Borrower shall, within fifteen (15) days after written notice and demand from such Lender, pay to such Lender additional amounts sufficient to compensate such Lender, or its parent corporation, for such reduction. Any determination by a Lender under this Section 3.5(e) and participants had match funded any certificate Obligation as to which interest is accruing at the LIBOR Rate by acquiring eurodollar deposits for each Interest Period in the amount of such reduction given to Borrower by such Lender shall be final, conclusive and binding for all purposes, absent errorthe LIBOR Rate Loans.
(f) If, as a result of any Change in Law any Taxes are required to be withheld or deducted from any amount payable to Agent or any Lender with respect to a LIBOR Portion, the amount payable will be increased to the amount which, after deduction from such increased amount of all Taxes required to be withheld or deducted therefrom, will yield to Agent and/or Lenders the amount stated to be payable with respect thereto. Borrower will execute and deliver to Agent at its request such further instruments as may be necessary or desirable to give full force and effect to any such increase, including, but not limited to, replacement promissory notes to be issued in exchange for the Notes theretofore issued. Borrower will also hold Agent and each Lender harmless and indemnify each of them for any stamp or other Taxes with respect to the preparation, execution, delivery, performance or enforcement of the Loan Documents for each Construction Loan (all of which shall be included in "Taxes"). Borrower will, upon the request of Agent, provide Agent with evidence satisfactory to it of the payment of any Taxes. If any of the Taxes are paid by Agent or any Lender, Borrower will, upon demand of Agent or such Lender, reimburse Agent or such Lender for such payments, together with any interest, penalties and expenses in connection therewith, plus interest thereon at the Default Interest Rate from the date such payment or payments are made to the date of reimbursement by Borrower.
(g) Borrower and Agent shall from time to time, upon written request from the other, deliver a written acknowledgment in form reasonably satisfactory to the requesting party indicating, as of the date thereof: (a) the respective portions of each Construction Loan which bear interest at the Prime-Based Rate, (b) the respective portions of each Construction Loan which bear interest at the LIBOR-Based Rate, and the LIBOR-Based Rate(s) applicable thereto, and (c) the respective Conversion Date(s) applicable to any and all LIBOR Portion(s).
Appears in 1 contract
Libor Option. (a) Provided that no Project Default then exists with respect to Borrower may, at any individual Construction Loan, Borrower shall have the right to elect (assuming each of the conditions set forth in subsections (i), (ii) time and (iii) below have been satisfied), from time to time during the term time, so long as no Default or Event of such Construction LoanDefault has occurred and is continuing, elect to have (y) interest on all or any part, but in no event less than One Hundred Thousand and 00/100 Dollars ($100,000.00), a portion of the then outstanding principal indebtedness evidenced by the Notes executed and delivered in connection with such Construction Loan treated as Advances be charged at a LIBOR Portion, and/or to convert (z) the whole or not less than One Hundred Thousand and 00/100 Dollars ($100,000.00) rate of any existing LIBOR Portion converted to a new LIBOR Portion interest based upon the Contract Payment Date for such LIBOR Portion, subject to:
Rate (ithe “LIBOR Option”) by notifying the receipt by Administrative Agent of notice of such election, together with an election of a Contract Period, not less than prior to 12:00 noon New York time at least three (3) Business Days prior to (i) the date requested by Borrower for proposed Funding Date of an Advance (as provided in Section 2.11), (ii) in the case of the conversion of a Reference Rate Advance to a LIBOR Rate Advance, the commencement of the new Contract required to cover the new LIBOR Portion;
(ii) the availability to Agent and/or Lenders of a Contract to cover such new LIBOR Portion effective on the requested date of commencement for the Contract Period; and
proposed Interest Period or (iii) in the case of the continuation of a LIBOR Rate Advance as a LIBOR Rate Advance, the last day of the then current Interest Period (the “LIBOR Deadline”). If such notice of conversion or continuation fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month. Notice of Borrower's payment ’s election of any Additional Costthe LIBOR Option for a permitted portion of the Advances and an Interest Period pursuant to this Section 2.6(a) shall be made by delivery to the Administrative Agent of (A) a Payment/Advance Form (in the case of the initial making of a Advance) in accordance with Section 2.11 or (B) a LIBOR Notice prior to the LIBOR Deadline. Promptly upon its receipt of each such LIBOR Notice, Funding Cost the Administrative Agent shall notify each of the Lenders. Each LIBOR Notice shall be irrevocable and Taxes incurred by Agent or any Lender from time to time attributable to such new LIBOR Portionbinding on Borrower.
(b) Interest on each LIBOR Portion Rate Advances shall be payable, payable in arrears, on accordance with Section 2.3. On the first last day of each month. applicable Interest due on any Period, unless Borrower shall have properly exercised the LIBOR Portion on Option with respect thereto, the date interest rate applicable to such LIBOR Rate Advances automatically shall convert to the rate of any termination, breakage or other disposition of its covering Contract shall be paid interest then applicable to Agent and received by Agent in immediately available funds, at the place designated by Agent, by 2:00 p.m. on the date such interest is due to Agent or any Lender by reason Reference Rate Advances of the terminationsame type hereunder. At any time that a Default or an Event of Default has occurred and is continuing, breakage or other disposition in accordance with Borrower no longer shall have the foregoing.
(c) Any option to request that any portion of the principal balance of any Construction Loan from time to time outstanding that is not a LIBOR Portion shall be considered Prime-Based Funds accruing Advances bear interest at the Prime-Based Rate.
(d) If, after LIBOR Rate and the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change 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 Agent or any Lender with any request or directive, whether or not having the force of law of any such authority, central bank or comparable agency, shall make it unlawful or impossible for Agent or any Lender to make, maintain or fund a LIBOR Portion, Administrative Agent shall so notify Borrower. Upon receipt have the right to convert the interest rate on all outstanding LIBOR Rate Advances to the rate of such notice, Borrower shall repay in full interest then applicable to Reference Rate Advances of the then outstanding principal amount of each affected LIBOR Portion, together with accrued interest thereon, same type hereunder on either (i) the last day of the then current Contract Interest Period.
(c) Borrower may, on any Business Day of the then-current Interest Period applicable thereto if Agent and Lenders may lawfully continue to maintain and fund such any outstanding LIBOR Portion to such day Rate Advance, or (ii) immediately if Agent or on any Lender may not lawfully continue to fund and maintain such LIBOR Portion to such day. Concurrently with repaying each such LIBOR Portion and provided no Default or Event of Default is then in existence Business Day with respect to Reference Rate Advances, convert any such Advance into another type of Advance (i.e., a Reference Rate Advance or a LIBOR Rate Advance) in the affected Construction Loan, Borrower may, at its option, reborrow from Lenders an equal same aggregate principal amount, at the Prime-Based Rateprovided, in accordance with and subject to the terms and conditions hereof and of the Loan Documents executed and delivered in connection with the affected Construction Loan.
(e) In the event that any Change in Law reduces or shall have the effect conversion of reducing the rate of return on a Lender's capital or the capital of its parent corporation (by an amount such Lender deems material) as a consequence of the Facility or any Construction Loan to a level below that which such Lender or its parent corporation could have achieved but for such Change in Law (taking into account such Lender's policies and the policies of its parent corporation with respect to capital adequacy), and provided all affected Advances are not required to be repaid by Borrower pursuant to Section 3.5(d) above, then Borrower shall, within fifteen (15) days after written notice and demand from such Lender, pay to such Lender additional amounts sufficient to compensate such Lender, or its parent corporation, for such reduction. Any determination by a Lender under this Section 3.5(e) and any certificate as to the amount of such reduction given to Borrower by such Lender shall be final, conclusive and binding for all purposes, absent error.
(f) If, as a result of any Change in Law any Taxes are required to be withheld or deducted from any amount payable to Agent or any Lender with respect to a LIBOR Portion, the amount payable will be increased to the amount which, after deduction from such increased amount of all Taxes required to be withheld or deducted therefrom, will yield to Agent and/or Lenders the amount stated to be payable with respect thereto. Borrower will execute and deliver to Agent at its request such further instruments as may be necessary or desirable to give full force and effect to any such increase, including, but not limited to, replacement promissory notes to be issued in exchange for the Notes theretofore issued. Borrower will also hold Agent and each Lender harmless and indemnify each of them for any stamp or other Taxes with respect to the preparation, execution, delivery, performance or enforcement of the Loan Documents for each Construction Loan (all of which shall be included in "Taxes"). Borrower will, upon the request of Agent, provide Agent with evidence satisfactory to it of the payment of any Taxes. If any of the Taxes are paid by Agent or any Lender, Borrower will, upon demand of Agent or such Lender, reimburse Agent or such Lender for such payments, together with any interest, penalties and expenses in connection therewith, plus interest thereon at the Default Interest Rate from the date such payment or payments are made to the date of reimbursement by Borrower.
(g) Borrower and Agent shall from time to time, upon written request from the other, deliver a written acknowledgment in form reasonably satisfactory to the requesting party indicating, as of the date thereof: (a) the respective portions of each Construction Loan which bear interest at the Prime-Based Rate, (b) the respective portions of each Construction Loan which bear interest at the LIBOR-Based Rate, and the LIBOR-Based Rate(s) applicable thereto, and (c) the respective Conversion Date(s) applicable to any and all LIBOR Portion(s).
Appears in 1 contract
Sources: Loan and Guaranty Agreement (Safeguard Scientifics Inc)
Libor Option. (a) Provided that The Borrowers may, at any time and from time to time, so long as no Project Default then exists with respect or Event of Default has occurred and is continuing, elect to any individual Construction Loan, Borrower shall have the right to elect (assuming each interest on all or a portion of the conditions set forth in subsections Loans be charged at a rate of interest based upon the LIBOR Rate (the "LIBOR Option") by notifying the Administrative Agent prior to 11:00 a.m. (New York City time) at least 3 Business Days prior to (i) the proposed borrowing date of a Loan (as provided in Section 2.02), (ii) and in the case of the conversion of a Reference Rate Loan to a LIBOR Rate Loan, the commencement of the proposed Interest Period or (iii) below have been satisfied), from time to time during in the term case of such Construction the continuation of a LIBOR Rate Loan as a LIBOR Rate Loan, to have (y) all or any part, but in no event less than One Hundred Thousand and 00/100 Dollars ($100,000.00), the last day of the then outstanding principal indebtedness evidenced current Interest Period (the "LIBOR Deadline"). Notice of the Borrowers' election of the LIBOR Option for a permitted portion of the Loans and an Interest Period pursuant to this Section 2.07(a) shall be made by delivery to the Notes executed and delivered Administrative Agent of (A) a Notice of Borrowing (in connection the case of the initial making of a Loan) in accordance with such Construction Loan treated as Section 2.02 or (B) a LIBOR Portion, and/or to convert (z) the whole or not less than One Hundred Thousand and 00/100 Dollars ($100,000.00) of any existing LIBOR Portion converted to a new LIBOR Portion upon the Contract Payment Date for such LIBOR Portion, subject to:
(i) the receipt by Agent of notice of such election, together with an election of a Contract Period, not less than three (3) Business Days Notice prior to the date requested LIBOR Deadline (or by Borrower for commencement telephonic notice received by the Administrative Agent before the LIBOR Deadline (to be confirmed by delivery to the Administrative Agent of a LIBOR Notice received by the Administrative Agent prior to 5:00 p.m. (New York City time) on the same day)). Promptly upon its receipt of each such LIBOR Notice, the Administrative Agent shall provide a copy thereof to each of the new Contract required to cover the new Lenders. Each LIBOR Portion;
(ii) the availability to Agent and/or Lenders of a Contract to cover such new LIBOR Portion effective Notice shall be irrevocable and binding on the requested date of commencement for the Contract Period; and
(iii) Borrower's payment of any Additional Cost, Funding Cost and Taxes incurred by Agent or any Lender from time to time attributable to such new LIBOR PortionBorrowers.
(b) Interest on each LIBOR Portion Rate Loans shall be payable, payable in arrears, on accordance with Section 2.04(d). On the first last day of each month. applicable Interest due on any Period, unless the Borrowers properly have exercised the LIBOR Portion on Option with respect thereto, the date interest rate applicable to such LIBOR Rate Loans automatically shall convert to the rate of any termination, breakage or other disposition of its covering Contract shall be paid interest then applicable to Agent and received by Agent in immediately available funds, at the place designated by Agent, by 2:00 p.m. on the date such interest is due to Agent or any Lender by reason Reference Rate Loans of the terminationsame type hereunder. At any time that a Default or an Event of Default has occurred and is continuing, breakage or other disposition in accordance with the foregoing.
(c) Any Borrowers no longer shall have the option to request that any portion of the principal balance of any Construction Loan from time to time outstanding that is not a LIBOR Portion shall be considered Prime-Based Funds accruing Loans bear interest at the Prime-Based Rate.
(d) If, after LIBOR Rate and the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change 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 Agent or any Lender with any request or directive, whether or not having the force of law of any such authority, central bank or comparable agency, shall make it unlawful or impossible for Agent or any Lender to make, maintain or fund a LIBOR Portion, Administrative Agent shall so notify Borrower. Upon receipt have the right to convert the interest rate on all outstanding LIBOR Rate Loans to the rate of such notice, Borrower shall repay in full interest then applicable to Reference Rate Loans of the then outstanding principal amount of each affected LIBOR Portion, together with accrued interest thereon, on either (i) same type hereunder prior to the last day of the then current Contract Period applicable thereto if Agent Interest Period.
(c) Notwithstanding anything to the contrary contained in this Agreement, the Borrowers (i) shall have not more than 5 LIBOR Rate Loans in effect at any given time, and Lenders may lawfully continue to maintain and fund such LIBOR Portion to such day or (ii) immediately if Agent only may exercise the LIBOR Option for LIBOR Rate Loans of at least $500,000 and integral multiples of $100,000 in excess thereof.
(d) The Borrowers may prepay LIBOR Rate Loans at any time; provided, however, that, in the event that LIBOR Rate Loans are prepaid on any date that is not the last day of the Interest Period applicable thereto, including as a result of any mandatory prepayment pursuant to Section 2.05(c) or any Lender may not lawfully continue to fund and maintain such LIBOR Portion to such day. Concurrently with repaying each such LIBOR Portion and provided no Default application of payments or Event proceeds of Default is then in existence with respect to the affected Construction Loan, Borrower may, at its option, reborrow from Lenders an equal principal amount, at the Prime-Based Rate, Collateral in accordance with and subject Section 4.03 or Section 4.04 or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof, the Borrowers shall indemnify, defend, and conditions hereof hold the Agents and of the Loan Documents executed Lenders and delivered their participants harmless against any and all Funding Losses in connection accordance with the affected Construction LoanSection 2.08.
(e) In Anything to the event that contrary contained herein notwithstanding, neither any Change in Law reduces Agent nor any Lender, nor any of their participants, is required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues at the LIBOR Rate. The provisions of this Article II shall have the effect of reducing the rate of return on a Lender's capital or the capital of its parent corporation (by an amount such Lender deems material) apply as a consequence of the Facility or any Construction Loan to a level below that which such if each Lender or its parent corporation could have achieved but for such Change in Law (taking into account such Lender's policies and the policies of its parent corporation with respect to capital adequacy), and provided all affected Advances are not required to be repaid by Borrower pursuant to Section 3.5(d) above, then Borrower shall, within fifteen (15) days after written notice and demand from such Lender, pay to such Lender additional amounts sufficient to compensate such Lender, or its parent corporation, for such reduction. Any determination by a Lender under this Section 3.5(e) and participants had match funded any certificate Obligation as to which interest is accruing at the LIBOR Rate by acquiring eurodollar deposits for each Interest Period in the amount of such reduction given to Borrower by such Lender shall be final, conclusive and binding for all purposes, absent errorthe LIBOR Rate Loans.
(f) If, as a result of any Change in Law any Taxes are required to be withheld or deducted from any amount payable to Agent or any Lender with respect to a LIBOR Portion, the amount payable will be increased to the amount which, after deduction from such increased amount of all Taxes required to be withheld or deducted therefrom, will yield to Agent and/or Lenders the amount stated to be payable with respect thereto. Borrower will execute and deliver to Agent at its request such further instruments as may be necessary or desirable to give full force and effect to any such increase, including, but not limited to, replacement promissory notes to be issued in exchange for the Notes theretofore issued. Borrower will also hold Agent and each Lender harmless and indemnify each of them for any stamp or other Taxes with respect to the preparation, execution, delivery, performance or enforcement of the Loan Documents for each Construction Loan (all of which shall be included in "Taxes"). Borrower will, upon the request of Agent, provide Agent with evidence satisfactory to it of the payment of any Taxes. If any of the Taxes are paid by Agent or any Lender, Borrower will, upon demand of Agent or such Lender, reimburse Agent or such Lender for such payments, together with any interest, penalties and expenses in connection therewith, plus interest thereon at the Default Interest Rate from the date such payment or payments are made to the date of reimbursement by Borrower.
(g) Borrower and Agent shall from time to time, upon written request from the other, deliver a written acknowledgment in form reasonably satisfactory to the requesting party indicating, as of the date thereof: (a) the respective portions of each Construction Loan which bear interest at the Prime-Based Rate, (b) the respective portions of each Construction Loan which bear interest at the LIBOR-Based Rate, and the LIBOR-Based Rate(s) applicable thereto, and (c) the respective Conversion Date(s) applicable to any and all LIBOR Portion(s).
Appears in 1 contract
Sources: Loan Agreement (Otelco Inc.)
Libor Option. On the Closing Date, or at the expiration of any Interest Period (aas hereinafter defined), if Borrower selects the LIBOR Option, it shall simultaneously advise Lender whether such selection is for a thirty (30) Provided that no Project Default then exists day, sixty (60) day, ninety (90) day, one hundred twenty (120) day, one hundred fifty (150) day, one hundred eighty (180) day or a one (1) year period and the applicable interest rate shall remain effective for the period selected (an "Interest Period"). If Borrower elects to renew a LIBOR Option Advance, two (2) Business Days prior to the expiration of any Interest Period, Borrower shall give telephone instructions to Lender (confirmed in writing), of its election to renew the LIBOR Option Advance for a subsequent Interest Period and failure to give such instructions shall conclusively be presumed to be a selection by Borrower of the Prime Option. If Borrower has selected the Prime Option with respect to any individual Construction LoanAdvance, Borrower shall have the right to elect (assuming each of the conditions set forth in subsections (i)it may elect, (ii) and (iii) below have been satisfied), from time to time during the term of such Construction Loanat any time, to have change the interest rate to the LIBOR Option, by telephonic notice (yconfirmed in writing) all or any part, but in no event less later than One Hundred Thousand and 00/100 Dollars two ($100,000.00), of the then outstanding principal indebtedness evidenced by the Notes executed and delivered in connection with such Construction Loan treated as a LIBOR Portion, and/or to convert (z) the whole or not less than One Hundred Thousand and 00/100 Dollars ($100,000.00) of any existing LIBOR Portion converted to a new LIBOR Portion upon the Contract Payment Date for such LIBOR Portion, subject to:
(i) the receipt by Agent of notice of such election, together with an election of a Contract Period, not less than three (32) Business Days prior to the date requested by the LIBOR Option selection is to become effective. Borrower for commencement may select the LIBOR Option to be in effect with respect to all or specified portions of the new Contract required Revolving Credit, provided, however, Advances subject to cover the new LIBOR Portion;Option shall be in minimum increments of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) and no more than three (3) Advances shall be subject to the LIBOR Option at any one time. In the event Borrower has selected the LIBOR Option with respect to the initial funding or any Interest Period, such selection shall be subject to the following terms and conditions:
(ii) the availability to Agent and/or Lenders of a Contract to cover such new LIBOR Portion effective on the requested date of commencement for the Contract Period; and
(iii) Borrower's payment of any Additional Cost, Funding Cost and Taxes incurred by Agent or any Lender from time to time attributable to such new LIBOR Portion.
(b) Interest on each LIBOR Portion shall be payable, in arrears, on the first day of each month. Interest due on any LIBOR Portion on the date of any termination, breakage or other disposition of its covering Contract shall be paid to Agent and received by Agent in immediately available funds, at the place designated by Agent, by 2:00 p.m. on the date such interest is due to Agent or any Lender by reason of the termination, breakage or other disposition in accordance with the foregoing.
(c) Any portion of the principal balance of any Construction Loan from time to time outstanding that is not a LIBOR Portion shall be considered Prime-Based Funds accruing interest at the Prime-Based Rate.
(d1) If, after at any time, Lender shall have determined (which determination shall be final and conclusive and binding on the date hereofparties hereto provided Lender has made such determination in good faith) that, the adoption as a result of any applicable law, rule or regulation, or any change therein, or any change in any applicable law or governmental (federal, state or local, domestic or foreign) rule, regulation or order or any interpretation thereof (including without limitation, the interpretation introduction of any new or administration thereof by revised law or governmental rule, regulation or order) or its compliance with any governmental authority, directive or request of any central bank or comparable agency charged with the interpretation or administration thereof, or compliance by Agent or any Lender with any request or directive, other governmental authority (whether or not having the force of law law), the cost to Lender of making, funding or maintaining the portion of the Revolving Credit which then is subject to one or more LIBOR Options (the "LIBOR Loan") has increased from its cost at the time of the commencement of the relevant Interest Period, then Lender shall promptly so notify Borrower thereof by telephone (confirmed in writing) and Borrower shall pay to Lender within thirty (30) days an amount sufficient to indemnify Lender against such increased cost.
(2) In the event that, at any time, Lender shall have reasonably determined (which determination shall be final and conclusive and binding upon the parties hereto) that it has become unlawful for Lender to obtain funds in the relevant offshore interbank markets in order to make or maintain its LIBOR Loan, Lender shall promptly give notice to Borrower by telephone (confirmed in writing) of that determination, whereupon the Prime Rate Option, or a certificate of deposit based pricing option (the "CD Option") to be made available to Borrower by Lender upon such determination, shall be in effect for the duration of the pending Interest Periods with respect to the LIBOR Loan.
(3) If, on or before the date of commencement of any Interest Period, Lender shall have determined (which determination shall be final, conclusive and binding on all the parties hereto) that (i) deposits in United States dollars in amounts equal to the portion of the Revolving Credit to be subject to the LIBOR Option for that Interest Period are not being offered to Lender in the relevant markets, or (ii) by reason of changes affecting the relevant markets, the LIBOR Option to be in effect for that period will not adequately and fairly reflect the cost to Lender of maintaining the LIBOR Loan for that period, Lender shall promptly so notify Borrower by telephone (confirmed in writing) whereupon the Prime Option, or CD Option to be made available to Borrower by Lender upon such authority, central bank or comparable agencydetermination, shall make it unlawful or impossible be in effect for Agent or that period with respect to the LIBOR Loan;
(4) Borrower shall compensate Lender within thirty (30) days of the written request of Lender (which shall set forth in reasonable detail the basis for requesting such compensation) for all reasonable losses, expenses and liabilities (including without limitation, any interest paid by Lender to makelenders of funds borrowed by it to carry its LIBOR Loan during any Interest Period and for any loss sustained by Lender in connection with the re-employment of such funds) which Lender may sustain: (i) as a result of Borrower's failure to borrow funds which had been committed by Lender in advance, maintain at Borrower's request; or fund (ii) as a result of Borrower's prepayment of any outstanding LIBOR PortionLoan. In the event Lender shall have determined (which determination shall be binding and conclusive on Borrower) that, Agent by reason of circumstances affecting the relevant markets for the LIBOR Option, adequate and reasonable means do not exist for ascertaining the LIBOR Option with respect to (a) the continuation of the LIBOR Option then in existence pursuant to a prior request of Borrower, or (b) any request by Borrower to change the Prime Option then in existence, to the LIBOR Option, Lender shall so promptly notify BorrowerBorrower by telephone (confirmed in writing) of such determination. Upon receipt of such notice, Borrower shall repay in full the then outstanding principal amount of each affected LIBOR PortionPrime Option, together with accrued interest thereon, on either (i) the last day of the then current Contract Period applicable thereto if Agent and Lenders may lawfully continue to maintain and fund such LIBOR Portion to such day or (ii) immediately if Agent or any Lender may not lawfully continue to fund and maintain such LIBOR Portion to such day. Concurrently with repaying each such LIBOR Portion and provided no Default or Event of Default is then in existence with respect to the affected Construction Loan, Borrower may, at its option, reborrow from Lenders an equal principal amount, at the Prime-Based Rate, in accordance with and subject to the terms and conditions hereof and of the Loan Documents executed and delivered in connection with the affected Construction Loan.
(e) In the event that any Change in Law reduces or shall have the effect of reducing the rate of return on a Lender's capital or the capital of its parent corporation (by an amount such Lender deems material) as a consequence of the Facility or any Construction Loan to a level below that which such Lender or its parent corporation could have achieved but for such Change in Law (taking into account such Lender's policies and the policies of its parent corporation with respect to capital adequacy), and provided all affected Advances are not required CD Option to be repaid by Borrower pursuant to Section 3.5(d) above, then Borrower shall, within fifteen (15) days after written notice and demand from such Lender, pay to such Lender additional amounts sufficient to compensate such Lender, or its parent corporation, for such reduction. Any determination by a Lender under this Section 3.5(e) and any certificate as to the amount of such reduction given made available to Borrower by Lender upon such Lender determination, shall be final, conclusive and binding for all purposes, absent error.
(f) If, as a result of any Change in Law any Taxes are required to be withheld or deducted from any amount payable to Agent or any effect until Lender with respect to a LIBOR Portion, the amount payable will be increased to the amount which, after deduction from such increased amount of all Taxes required to be withheld or deducted therefrom, will yield to Agent and/or Lenders the amount stated to be payable with respect thereto. notifies Borrower will execute and deliver to Agent at its request such further instruments as that it may be necessary or desirable to give full force and effect to any such increase, including, but not limited to, replacement promissory notes to be issued in exchange for the Notes theretofore issued. Borrower will also hold Agent and each Lender harmless and indemnify each of them for any stamp or other Taxes with respect to the preparation, execution, delivery, performance or enforcement resume selection of the Loan Documents for each Construction Loan (all of which LIBOR Option. In any case where Borrower may select an interest rate option and fails or neglects to do so, then the Prime Option shall be included in "Taxes"). Borrower will, upon the request of Agent, provide Agent with evidence satisfactory to it of the payment of any Taxes. If any of the Taxes are paid by Agent or any Lender, Borrower will, upon demand of Agent or such Lender, reimburse Agent or such Lender for such payments, together with any interest, penalties and expenses in connection therewith, plus interest thereon at the Default Interest Rate from the date such payment or payments are made to the date of reimbursement by Borrowerapply.
(g) Borrower and Agent shall from time to time, upon written request from the other, deliver a written acknowledgment in form reasonably satisfactory to the requesting party indicating, as of the date thereof: (a) the respective portions of each Construction Loan which bear interest at the Prime-Based Rate, (b) the respective portions of each Construction Loan which bear interest at the LIBOR-Based Rate, and the LIBOR-Based Rate(s) applicable thereto, and (c) the respective Conversion Date(s) applicable to any and all LIBOR Portion(s).
Appears in 1 contract
Libor Option. (a) Provided that The Borrowers may, at any time and from time to time, so long as no Project Default then exists with respect or Event of Default has occurred and is continuing, elect to any individual Construction Loan, Borrower shall have the right to elect (assuming each interest on all or a portion of the conditions set forth in subsections Loans be charged at a rate of interest based upon the LIBOR Rate (the "LIBOR Option") by notifying the Administrative Agent prior to 11:00 a.m. (New York City time) at least 3 Business Days prior to (i) the proposed borrowing date of a Loan (as provided in Section 2.02), (ii) and in the case of the conversion of a Reference Rate Loan to a LIBOR Rate Loan, the commencement of the proposed Interest Period or (iii) below have been satisfied), from time to time during in the term case of such Construction the continuation of a LIBOR Rate Loan as a LIBOR Rate Loan, to have (y) all or any part, but in no event less than One Hundred Thousand and 00/100 Dollars ($100,000.00), the last day of the then outstanding principal indebtedness evidenced current Interest Period (the "LIBOR Deadline"). Notice of the Borrowers' election of the LIBOR Option for a permitted portion of the Loans and an Interest Period pursuant to this Section 2.07(a) shall be made by delivery to the Notes executed and delivered Administrative Agent of (A) a Notice of Borrowing (in connection the case of the initial making of a Loan) in accordance with such Construction Loan treated as Section 2.02 or (B) a LIBOR Portion, and/or to convert (z) the whole or not less than One Hundred Thousand and 00/100 Dollars ($100,000.00) of any existing LIBOR Portion converted to a new LIBOR Portion upon the Contract Payment Date for such LIBOR Portion, subject to:
(i) the receipt by Agent of notice of such election, together with an election of a Contract Period, not less than three (3) Business Days Notice prior to the date requested LIBOR Deadline (or by Borrower for commencement telephonic notice received by the Administrative Agent before the LIBOR Deadline (to be confirmed by delivery to the Administrative Agent of a LIBOR Notice received by the Administrative Agent prior to 5:00 p.m. (New York City time) on the same day)). Promptly upon its receipt of each such LIBOR Notice, the Administrative Agent shall provide a copy thereof to each of the new Contract required to cover the new Lenders. Each LIBOR Portion;
(ii) the availability to Agent and/or Lenders of a Contract to cover such new LIBOR Portion effective Notice shall be irrevocable and binding on the requested date of commencement for the Contract Period; and
(iii) Borrower's payment of any Additional Cost, Funding Cost and Taxes incurred by Agent or any Lender from time to time attributable to such new LIBOR PortionBorrowers.
(b) Interest on each LIBOR Portion Rate Loans shall be payable, payable in arrears, on accordance with Section 2.04(d). On the first last day of each month. applicable Interest due on any Period, unless the Borrowers properly have exercised the LIBOR Portion on Option with respect thereto, the date interest rate applicable to such LIBOR Rate Loans automatically shall convert to the rate of any termination, breakage or other disposition of its covering Contract shall be paid interest then applicable to Agent and received by Agent in immediately available funds, at the place designated by Agent, by 2:00 p.m. on the date such interest is due to Agent or any Lender by reason Reference Rate Loans of the terminationsame type hereunder. At any time that a Default or an Event of Default has occurred and is continuing, breakage or other disposition in accordance with the foregoing.
(c) Any Borrowers no longer shall have the option to request that any portion of the principal balance of any Construction Loan from time to time outstanding that is not a LIBOR Portion shall be considered Prime-Based Funds accruing Loans bear interest at the Prime-Based Rate.
(d) If, after LIBOR Rate and the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change 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 Agent or any Lender with any request or directive, whether or not having the force of law of any such authority, central bank or comparable agency, shall make it unlawful or impossible for Agent or any Lender to make, maintain or fund a LIBOR Portion, Administrative Agent shall so notify Borrower. Upon receipt have the right to convert the interest rate on all outstanding LIBOR Rate Loans to the rate of such notice, Borrower shall repay in full interest then applicable to Reference Rate Loans of the then outstanding principal amount of each affected LIBOR Portion, together with accrued interest thereon, same type hereunder on either (i) the last day of the then current Contract Period applicable thereto if Agent Interest Period.
(c) Notwithstanding anything to the contrary contained in this Agreement, the Borrowers (i) shall have not more than 5 LIBOR Rate Loans in effect at any given time, and Lenders may lawfully continue to maintain and fund such LIBOR Portion to such day or (ii) immediately if Agent only may exercise the LIBOR Option for LIBOR Rate Loans of at least $500,000 and integral multiples of $100,000 in excess thereof.
(d) The Borrowers may prepay LIBOR Rate Loans at any time; provided, however, that in the event that LIBOR Rate Loans are prepaid on any date that is not the last day of the Interest Period applicable thereto, including as a result of any mandatory prepayment pursuant to Section 2.05(c) or any Lender may not lawfully continue to fund and maintain such LIBOR Portion to such day. Concurrently with repaying each such LIBOR Portion and provided no Default application of payments or Event proceeds of Default is then in existence with respect to the affected Construction Loan, Borrower may, at its option, reborrow from Lenders an equal principal amount, at the Prime-Based Rate, Collateral in accordance with and subject Section 4.03 or Section 4.04 or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof, the Borrowers shall indemnify, defend, and conditions hereof hold the Agents and of the Loan Documents executed Lenders and delivered their participants harmless against any and all Funding Losses in connection accordance with the affected Construction LoanSection 2.08.
(e) In Anything to the event that contrary contained herein notwithstanding, neither any Change in Law reduces Agent nor any Lender, nor any of their participants, is required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues at the LIBOR Rate. The provisions of this Article II shall have the effect of reducing the rate of return on a Lender's capital or the capital of its parent corporation (by an amount such Lender deems material) apply as a consequence of the Facility or any Construction Loan to a level below that which such if each Lender or its parent corporation could have achieved but for such Change in Law (taking into account such Lender's policies and the policies of its parent corporation with respect to capital adequacy), and provided all affected Advances are not required to be repaid by Borrower pursuant to Section 3.5(d) above, then Borrower shall, within fifteen (15) days after written notice and demand from such Lender, pay to such Lender additional amounts sufficient to compensate such Lender, or its parent corporation, for such reduction. Any determination by a Lender under this Section 3.5(e) and participants had match funded any certificate Obligation as to which interest is accruing at the LIBOR Rate by acquiring eurodollar deposits for each Interest Period in the amount of such reduction given to Borrower by such Lender shall be final, conclusive and binding for all purposes, absent errorthe LIBOR Rate Loans.
(f) If, as a result of any Change in Law any Taxes are required to be withheld or deducted from any amount payable to Agent or any Lender with respect to a LIBOR Portion, the amount payable will be increased to the amount which, after deduction from such increased amount of all Taxes required to be withheld or deducted therefrom, will yield to Agent and/or Lenders the amount stated to be payable with respect thereto. Borrower will execute and deliver to Agent at its request such further instruments as may be necessary or desirable to give full force and effect to any such increase, including, but not limited to, replacement promissory notes to be issued in exchange for the Notes theretofore issued. Borrower will also hold Agent and each Lender harmless and indemnify each of them for any stamp or other Taxes with respect to the preparation, execution, delivery, performance or enforcement of the Loan Documents for each Construction Loan (all of which shall be included in "Taxes"). Borrower will, upon the request of Agent, provide Agent with evidence satisfactory to it of the payment of any Taxes. If any of the Taxes are paid by Agent or any Lender, Borrower will, upon demand of Agent or such Lender, reimburse Agent or such Lender for such payments, together with any interest, penalties and expenses in connection therewith, plus interest thereon at the Default Interest Rate from the date such payment or payments are made to the date of reimbursement by Borrower.
(g) Borrower and Agent shall from time to time, upon written request from the other, deliver a written acknowledgment in form reasonably satisfactory to the requesting party indicating, as of the date thereof: (a) the respective portions of each Construction Loan which bear interest at the Prime-Based Rate, (b) the respective portions of each Construction Loan which bear interest at the LIBOR-Based Rate, and the LIBOR-Based Rate(s) applicable thereto, and (c) the respective Conversion Date(s) applicable to any and all LIBOR Portion(s).
Appears in 1 contract
Sources: Financing Agreement (Cherokee Inc)
Libor Option. (a) Provided that The Borrower may, at any time and from time to time, so long as no Project Default or Event of Default has occurred and is continuing, elect to have interest on all or a portion of the Loans be charged at a rate of interest based upon the LIBOR Rate (the “LIBOR Option”) by notifying the Administrative Agent prior to 11:00 a.m. (New York City time) at least 3 Business Days prior to (i) the proposed borrowing date of a Loan (as provided in Section 2.02), (ii) in the case of the conversion of a Reference Rate Loan to a LIBOR Rate Loan, the commencement of the proposed Interest Period or (iii) in the case of the continuation of a LIBOR Rate Loan as a LIBOR Rate Loan, the last day of the then exists current Interest Period (the “LIBOR Deadline”). Notice of the Borrower’s election of the LIBOR Option for a permitted portion of the Loans and an Interest Period pursuant to this Section 2.07(a) shall be made by delivery to the Administrative Agent of (A) a Notice of Borrowing (in the case of the initial making of a Loan) in accordance with Section 2.02 or (B) a LIBOR Notice prior to the LIBOR Deadline (received by the Administrative Agent before the LIBOR Deadline). Promptly upon its receipt of each such LIBOR Notice, the Administrative Agent shall provide a copy thereof to each of the Lenders. Each LIBOR Notice shall be irrevocable and binding on the Borrower.
(b) Interest on LIBOR Rate Loans shall be payable in accordance with Section 2.04(d). On the last day of each applicable Interest Period, unless the Borrower properly has exercised the LIBOR Option with respect thereto, the interest rate applicable to such LIBOR Rate Loans automatically shall convert to the rate of interest then applicable to Reference Rate Loans of the same type hereunder. At any individual Construction Loantime that a Default or an Event of Default has occurred and is continuing, the Borrower no longer shall have the option to request that any portion of the Loans bear interest at the LIBOR Rate and the Administrative Agent shall have the right to elect (assuming each convert the interest rate on all outstanding LIBOR Rate Loans to the rate of interest then applicable to Reference Rate Loans of the conditions set forth same type hereunder prior to the last day of the then current Interest Period.
(c) Notwithstanding anything to the contrary contained in subsections this Agreement, the Borrower (i) shall have not more than five (5) LIBOR Rate Loans in effect at any given time, and (ii) only may exercise the LIBOR Option for LIBOR Rate Loans of at least $500,000 and integral multiples of $100,000 in excess thereof.
(d) The Borrower may prepay LIBOR Rate Loans at any time; provided, however, that in the event that LIBOR Rate Loans are prepaid on any date that is not the last day of the Interest Period applicable thereto, including as a result of any mandatory prepayment pursuant to Section 2.05(c) or any application of payments or proceeds of Collateral in accordance with Section 4.03 or Section 4.04 or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof, the Borrower shall indemnify, defend, and hold the Agents and the Lenders and their participants harmless against any and all Funding Losses in accordance with Section 2.08.
(e) Anything to the contrary contained herein notwithstanding, neither any Agent nor any Lender, nor any of their participants, is required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues at the LIBOR Rate. The provisions of this Article II shall apply as if each Lender or its participants had match funded any Obligation as to which interest is accruing at the LIBOR Rate by acquiring eurodollar deposits for each Interest Period in the amount of the LIBOR Rate Loans.
(f) Unless and until a Replacement Rate is implemented in accordance with clause (g) below, if prior to the commencement of any Interest Period for any LIBOR Rate Loan,
(i) the Administrative Agent shall have determined that either Dollar deposits are not being offered to banks in the London interbank Eurodollar market for the applicable amount and Interest Period of such Loan, or adequate and reasonable means do not exist for ascertaining LIBOR for such Interest Period, including, without limitation, because the Administrative Agent determines that either inadequate or insufficient quotations of the London interbank offered rate exist or the use of “LIBOR” has been discontinued (any determination of Administrative Agent to be conclusive and binding absent manifest error), or
(ii) the Administrative Agent shall have received notice from the Required Lenders that LIBOR does not adequately and fairly reflect the cost to such Lenders of making, funding or maintaining their LIBOR Rate Loans for such Interest Period, then the Administrative Agent shall give written notice to the Borrower and to the Lenders as soon as practicable thereafter. Until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (A) the obligations of the Lenders to make LIBOR Rate Loans, or to continue or convert outstanding Loans as or into LIBOR Rate Loans, shall be suspended and (B) all such affected Loans shall be converted into Reference Rate Loans on the last day of the then current Interest Period applicable thereto.
(g) Notwithstanding anything to the contrary contained herein, if at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances described in Section 2.07(f)(i) or (f)(ii) have arisen and such circumstances are unlikely to be temporary, (ii) syndicated loans currently being executed, or that include language similar to that contained in Section 2.07(f), are being executed or amended (as applicable), to incorporate or adopt a new benchmark interest rate to replace LIBOR or (iii) the supervisor for the administrator of LIBOR or a Governmental Authority has made a public statement identifying a specific date after which LIBOR shall no longer be used for determining interest rates for loans, then the Administrative Agent, in consultation with the Borrower, shall endeavor to establish an alternate index rate (the “Replacement Rate”) that gives due consideration to the then prevailing market convention for determining a rate of interest for leveraged syndicated loans in the United States at such time, in which case the Replacement Rate shall, subject to the following provisions of this Section 2.07(g), replace such applicable interest rate for all purposes under the Loan Documents unless and until (A) an event described in Section 2.07(f)(i), (f)(ii), (g)(i), (g)(ii) or (g)(iii) occurs with respect to the Replacement Rate or (B) the Required Lenders through the Administrative Agent notify the Borrower that the Replacement Rate does not adequately and fairly reflect the cost to the Lenders of making, funding or maintaining the Loans bearing interest at the Replacement Rate. In connection with the establishment and application of the Replacement Rate, this Agreement and the other Loan Documents shall be amended solely with the consent of the Administrative Agent and the Borrower as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.07(g). Notwithstanding anything to the contrary in Section 12.02, such amendment shall become effective without any further action or consent of any Lender so long as the Administrative Agent shall not have received, within five (5) Business Days after the date notice such amendment is provided to the Lenders, a written notice from Required Lenders stating that they object to such amendment (which amendment shall not be effective prior to the end of such five (5) Business Day notice period). To the extent the Replacement Rate is adopted as contemplated hereby, the Replacement Rate shall be applied in a manner consistent with prevailing market convention; provided that, to the extent no prevailing market convention exists or such prevailing market convention is not administratively feasible for the Administrative Agent, such Replacement Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent in consultation with the Borrower. If the Administrative Agent makes a determination described in clause (i), (ii) and or (iii) below have above, until a Replacement Rate has been satisfied), from time to time during the term of such Construction Loan, to have (y) all or any part, but in no event less than One Hundred Thousand determined and 00/100 Dollars ($100,000.00), of the then outstanding principal indebtedness evidenced by the Notes executed and delivered in connection an amendment with such Construction Loan treated as a LIBOR Portion, and/or to convert (z) the whole or not less than One Hundred Thousand and 00/100 Dollars ($100,000.00) of any existing LIBOR Portion converted to a new LIBOR Portion upon the Contract Payment Date for such LIBOR Portion, subject to:
(i) the receipt by Agent of notice of such election, together with an election of a Contract Period, not less than three (3) Business Days prior to the date requested by Borrower for commencement of the new Contract required to cover the new LIBOR Portion;
(ii) the availability to Agent and/or Lenders of a Contract to cover such new LIBOR Portion respect thereto has become effective on the requested date of commencement for the Contract Period; and
(iii) Borrower's payment of any Additional Cost, Funding Cost and Taxes incurred by Agent or any Lender from time to time attributable to such new LIBOR Portion.
(b) Interest on each LIBOR Portion shall be payable, in arrears, on the first day of each month. Interest due on any LIBOR Portion on the date of any termination, breakage or other disposition of its covering Contract shall be paid to Agent and received by Agent in immediately available funds, at the place designated by Agent, by 2:00 p.m. on the date such interest is due to Agent or any Lender by reason of the termination, breakage or other disposition in accordance with the foregoing.
(c) Any portion of the principal balance of any Construction Loan from time to time outstanding that is not a LIBOR Portion shall be considered Prime-Based Funds accruing interest at the Prime-Based Rate.
(d) If, after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change 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 Agent or any Lender with any request or directive, whether or not having the force of law of any such authority, central bank or comparable agency, shall make it unlawful or impossible for Agent or any Lender to make, maintain or fund a LIBOR Portion, Agent shall so notify Borrower. Upon receipt of such notice, Borrower shall repay in full the then outstanding principal amount of each affected LIBOR Portion, together with accrued interest thereon, on either (i) the last day of the then current Contract Period applicable thereto if Agent and Lenders may lawfully continue to maintain and fund such LIBOR Portion to such day or (ii) immediately if Agent or any Lender may not lawfully continue to fund and maintain such LIBOR Portion to such day. Concurrently with repaying each such LIBOR Portion and provided no Default or Event of Default is then in existence with respect to the affected Construction Loan, Borrower may, at its option, reborrow from Lenders an equal principal amount, at the Prime-Based Rate, in accordance with and subject to the terms and conditions hereof and of this paragraph, (x) any notice from the Borrower that requests the conversion of any Reference Rate Loan Documents executed and delivered in connection with the affected Construction Loan.
(e) In the event that any Change in Law reduces or shall have the effect of reducing the rate of return on a Lender's capital or the capital of its parent corporation (by an amount such Lender deems material) as a consequence of the Facility or any Construction Loan to a level below that which such Lender or its parent corporation could have achieved but for such Change in Law (taking into account such Lender's policies and the policies of its parent corporation with respect to capital adequacy), and provided all affected Advances are not required to be repaid by Borrower pursuant to Section 3.5(d) above, then Borrower shall, within fifteen (15) days after written notice and demand from such Lender, pay to such Lender additional amounts sufficient to compensate such Lenderto, or its parent corporationcontinuation of any LIBOR Rate Loan as, for such reduction. Any determination by a Lender under this Section 3.5(e) and any certificate as to the amount of such reduction given to Borrower by such Lender LIBOR Rate Loan shall be final, conclusive and binding for all purposes, absent error.
(f) If, as a result of any Change in Law any Taxes are required to be withheld or deducted from any amount payable to Agent or any Lender with respect to a LIBOR Portion, the amount payable will be increased to the amount which, after deduction from such increased amount of all Taxes required to be withheld or deducted therefrom, will yield to Agent and/or Lenders the amount stated to be payable with respect thereto. Borrower will execute and deliver to Agent at its request such further instruments as may be necessary or desirable to give full force and effect to any such increase, including, but not limited to, replacement promissory notes to be issued in exchange for the Notes theretofore issued. Borrower will also hold Agent and each Lender harmless and indemnify each of them for any stamp or other Taxes with respect to the preparation, execution, delivery, performance or enforcement of the Loan Documents for each Construction Loan (all of which shall be included in "Taxes"). Borrower will, upon the request of Agent, provide Agent with evidence satisfactory to it of the payment of any Taxes. If any of the Taxes are paid by Agent or any Lender, Borrower will, upon demand of Agent or such Lender, reimburse Agent or such Lender for such payments, together with any interest, penalties and expenses in connection therewith, plus interest thereon at the Default Interest Rate from the date such payment or payments are made to the date of reimbursement by Borrower.
(g) Borrower and Agent shall from time to time, upon written request from the other, deliver a written acknowledgment in form reasonably satisfactory to the requesting party indicating, as of the date thereof: (a) the respective portions of each Construction Loan which bear interest at the Prime-Based Rate, (b) the respective portions of each Construction Loan which bear interest at the LIBOR-Based Rate, and the LIBOR-Based Rate(s) applicable theretoineffective, and (cy) if any notice of borrowing requests a LIBOR Rate Loan, such Loan shall be made as a Reference Rate Loan. Notwithstanding anything contained herein to the respective Conversion Date(s) applicable contrary, if such Replacement Rate as determined in this paragraph is determined to any and all LIBOR Portion(s)be less than 1.00% per annum, such rate shall be deemed to be 1.00% per annum for the purposes of this Agreement.
Appears in 1 contract
Libor Option. (a) Provided that no Project Default then exists with respect to Borrower may, at any individual Construction Loan, Borrower shall have the right to elect (assuming each of the conditions set forth in subsections (i), (ii) time and (iii) below have been satisfied), from time to time during the term time, so long as no Default or Event of such Construction LoanDefault has occurred and is continuing, elect to have (y) interest on all or any part, but in no event less than One Hundred Thousand and 00/100 Dollars ($100,000.00), a portion of the then outstanding principal indebtedness evidenced by the Notes executed and delivered in connection with such Construction Loan treated as Advances be charged at a LIBOR Portion, and/or to convert (z) the whole or not less than One Hundred Thousand and 00/100 Dollars ($100,000.00) rate of any existing LIBOR Portion converted to a new LIBOR Portion interest based upon the Contract Payment Date for such LIBOR Portion, subject to:
Rate (ithe “LIBOR Option”) by notifying the receipt by Administrative Agent of notice of such election, together with an election of a Contract Period, not less than prior to 12:00 noon New York time at least three (3) Business Days prior to (i) the date requested by Borrower for proposed Funding Date of a▇▇ Revolving Advance or the Term Advance (as provided in Section 2.11), (ii) in the case of the conversion of a Reference Rate Advance to a LIBOR Rate Advance, the commencement of the new Contract required to cover the new LIBOR Portion;
(ii) the availability to Agent and/or Lenders of a Contract to cover such new LIBOR Portion effective on the requested date of commencement for the Contract Period; and
proposed Interest Period or (iii) in the case of the continuation of a LIBOR Rate Advance as a LIBOR Rate Advance, the last day of the then current Interest Period (the “LIBOR Deadline”). If such notice of conversion or continuation fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month. Notice of Borrower's payment ’s election of any Additional Costthe LIBOR Option for a permitted portion of the Revolving Advances or the Term Advance and an Interest Period pursuant to this Section 2.6(a) shall be made by delivery to the Administrative Agent of (A) a Payment/Advance Form (in the case of the initial making of a Revolving Advance or the Term Advance) in accordance with Section 2.11 or (B) a LIBOR Notice prior to the LIBOR Deadline. Promptly upon its receipt of each such LIBOR Notice, Funding Cost the Administrative Agent shall notify each of the Revolving Lenders or Term Lenders, as applicable. Each LIBOR Notice shall be irrevocable and Taxes incurred by Agent or any Lender from time to time attributable to such new LIBOR Portionbinding on Borrower.
(b) Interest on each LIBOR Portion Rate Advances shall be payable, payable in arrears, on accordance with Section 2.3. On the first last day of each month. applicable Interest due on any Period, unless Borrower shall have properly exercised the LIBOR Portion on Option with respect thereto, the date interest rate applicable to such LIBOR Rate Advances automatically shall convert to the rate of any termination, breakage or other disposition of its covering Contract shall be paid interest then applicable to Agent and received by Agent in immediately available funds, at the place designated by Agent, by 2:00 p.m. on the date such interest is due to Agent or any Lender by reason Reference Rate Advances of the terminationsame type hereunder. At any time that a Default or an Event of Default has occurred and is continuing, breakage or other disposition in accordance with Borrower no longer shall have the foregoing.
(c) Any option to request that any portion of the principal balance of any Construction Loan from time to time outstanding that is not a LIBOR Portion shall be considered Prime-Based Funds accruing Revolving Advances or Term Advance bear interest at the Prime-Based Rate.
(d) If, after LIBOR Rate and the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change 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 Agent or any Lender with any request or directive, whether or not having the force of law of any such authority, central bank or comparable agency, shall make it unlawful or impossible for Agent or any Lender to make, maintain or fund a LIBOR Portion, Administrative Agent shall so notify Borrower. Upon receipt have the right to convert the interest rate on all outstanding LIBOR Rate Advances to the rate of such notice, Borrower shall repay in full interest then applicable to Reference Rate Advances of the then outstanding principal amount of each affected LIBOR Portion, together with accrued interest thereon, same type hereunder on either (i) the last day of the then current Contract Interest Period.
(c) Borrower may, on any Business Day of the then-current Interest Period applicable thereto if Agent and Lenders may lawfully continue to maintain and fund such any outstanding LIBOR Portion to such day Rate Advance, or (ii) immediately if Agent or on any Lender may not lawfully continue to fund and maintain such LIBOR Portion to such day. Concurrently with repaying each such LIBOR Portion and provided no Default or Event of Default is then in existence Business Day with respect to Reference Rate Advances, convert any such Advance into another type of Advance (i.e., a Reference Rate Advance or a LIBOR Rate Advance) in the affected Construction Loan, Borrower may, at its option, reborrow from Lenders an equal same aggregate principal amount, at provided, that any conversion of a LIBOR Rate Advance not made on the Prime-Based Rate, in accordance with and last Business Day of the then current Interest Period applicable to such LIBOR Rate Advance shall be subject to the terms and conditions hereof and of the Loan Documents executed and delivered in connection with the affected Construction LoanSection 2.
(e) In the event that any Change in Law reduces or shall have the effect of reducing the rate of return on a Lender's capital or the capital of its parent corporation (by an amount such Lender deems material) as a consequence of the Facility or any Construction Loan to a level below that which such Lender or its parent corporation could have achieved but for such Change in Law (taking into account such Lender's policies and the policies of its parent corporation with respect to capital adequacy), and provided all affected Advances are not required to be repaid by Borrower pursuant to Section 3.5(d) above, then Borrower shall, within fifteen (15) days after written notice and demand from such Lender, pay to such Lender additional amounts sufficient to compensate such Lender, or its parent corporation, for such reduction. Any determination by a Lender under this Section 3.5(e) and any certificate as to the amount of such reduction given to Borrower by such Lender shall be final, conclusive and binding for all purposes, absent error.
(f) If, as a result of any Change in Law any Taxes are required to be withheld or deducted from any amount payable to Agent or any Lender with respect to a LIBOR Portion, the amount payable will be increased to the amount which, after deduction from such increased amount of all Taxes required to be withheld or deducted therefrom, will yield to Agent and/or Lenders the amount stated to be payable with respect thereto. Borrower will execute and deliver to Agent at its request such further instruments as may be necessary or desirable to give full force and effect to any such increase, including, but not limited to, replacement promissory notes to be issued in exchange for the Notes theretofore issued. Borrower will also hold Agent and each Lender harmless and indemnify each of them for any stamp or other Taxes with respect to the preparation, execution, delivery, performance or enforcement of the Loan Documents for each Construction Loan (all of which shall be included in "Taxes"). Borrower will, upon the request of Agent, provide Agent with evidence satisfactory to it of the payment of any Taxes. If any of the Taxes are paid by Agent or any Lender, Borrower will, upon demand of Agent or such Lender, reimburse Agent or such Lender for such payments, together with any interest, penalties and expenses in connection therewith, plus interest thereon at the Default Interest Rate from the date such payment or payments are made to the date of reimbursement by Borrower.
(g) Borrower and Agent shall from time to time, upon written request from the other, deliver a written acknowledgment in form reasonably satisfactory to the requesting party indicating, as of the date thereof: (a) the respective portions of each Construction Loan which bear interest at the Prime-Based Rate, (b) the respective portions of each Construction Loan which bear interest at the LIBOR-Based Rate, and the LIBOR-Based Rate(s) applicable thereto, and (c) the respective Conversion Date(s) applicable to any and all LIBOR Portion(s).
Appears in 1 contract
Sources: Loan and Guaranty Agreement (Safeguard Scientifics Inc)