Capital Adequacy; Increased Costs. (a) If any Lender shall have determined that the adoption after the date hereof of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, reserve requirements or similar requirements or compliance by any Lender with any request or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender and thereby reducing the rate of return on such Lender's capital as a consequence of its obligations hereunder, then Borrower shall from time to time upon demand by such Lender (with a copy of such demand to Agent) pay to Agent, for the account of such Lender, additional amounts sufficient to compensate such Lender for such reduction. A certificate as to the amount of that reduction and showing the basis of the computation thereof submitted by such Lender to Borrower and to Agent shall, absent manifest error, be final, conclusive and binding for all purposes. (b) If, due to either (i) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Lender of agreeing to make or making, funding, or maintaining any Loan, then Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to Agent), pay to Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to Borrower and to Agent by such Lender, shall be conclusive and binding on Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers pursuant to this SECTION 1.16. (c) Notwithstanding anything to the contrary contained herein, if the introduction of or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central bank or other Governmental Authority shall assert that it is unlawful, for any Lender to agree to make or to make or to continue to fund or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Advance at another branch or office of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or the income obtained therefrom, on notice thereof and demand therefor by such Lender to Borrower through Agent, (i) the obligation of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Advances shall terminate and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR Advances owing by Borrower to such Lender, together with interest accrued thereon, UNLESS Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Option.
Appears in 3 contracts
Samples: Loan Agreement (Bti Telecom Corp), Loan Agreement (Bti Telecom Corp), Loan Agreement (Bti Telecom Corp)
Capital Adequacy; Increased Costs. (a) If any Lender shall have determined that the adoption after the date hereof of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, reserve requirements or similar requirements or compliance by any Lender with any request or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender and thereby reducing the rate of return on such Lender's capital as a consequence of its obligations hereunder, then Borrower Borrowers shall from time to time upon demand by such Lender (with a copy of such demand to Agent) pay to Agent, for the account of such Lender, additional amounts sufficient to compensate such Lender for such reduction. A certificate as to the amount of that reduction and showing the basis of the computation thereof submitted by such Lender to Borrower Representative and to Agent shall, absent manifest error, be final, conclusive and binding for all purposes.
(b) If, due to either (i) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Lender of agreeing to make or making, funding, funding or maintaining any Loan, then Borrower Borrowers shall from time to time, upon demand by such Lender (with a copy of such demand to Agent), pay to Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to Borrower Representative and to Agent by such Lender, shall be conclusive and binding on Borrower Borrowers for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers pursuant to this SECTION 1.16Section 1.15(b).
(c) Notwithstanding anything Within fifteen (15) days after receipt by Borrower Representative of written notice and demand from any Lender (an "Affected Lender") for payment of additional amounts or increased costs as provided in Section 1.15(a) or 1.15(b), Borrower Representative may, at its option, notify Agent and such Affected Lender of its intention to replace the Affected Lender. So long as no Default or Event of Default shall have occurred and be continuing, Borrower Representative, with the consent of Agent, may obtain, at Borrowers' expense, a replacement Lender ("Replacement Lender") for the Affected Lender, which Replacement Lender must be satisfactory to Agent. If Borrowers obtain a Replacement Lender within ninety (90) days following notice of their intention to do so, the Affected Lender must sell and assign its Revolving Credit Advances and Commitments to such Replacement Lender for an amount equal to the contrary contained hereinprincipal balance of all Revolving Credit Advances held by the Affected Lender and all accrued interest and Fees with respect thereto through the date of such sale, if provided that Borrowers shall have reimbursed such Affected Lender for the introduction of additional amounts or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central bank or other Governmental Authority shall assert increased costs that it is unlawful, for any Lender entitled to agree to make or to make or to continue to fund or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Advance at another branch or office of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or receive under this Agreement through the income obtained therefrom, on notice thereof and demand therefor by such Lender to Borrower through Agent, (i) the obligation date of such sale and assignment. Notwithstanding the foregoing, Borrowers shall not have the right to obtain a Replacement Lender if the Affected Lender rescinds its demand for increased costs or additional amounts within fifteen (15) days following its receipt of Borrowers' notice of intention to agree replace such Affected Lender. Furthermore, if Borrowers give a notice of intention to make or to make or to continue to fund or maintain LIBOR Advances replace and do not so replace such Affected Lender within ninety (90) days thereafter, Borrowers' rights under this Section 1.15(c) shall terminate and (iiBorrowers shall promptly pay all increased costs or additional amounts demanded by such Affected Lender pursuant to Sections 1.15(a) Borrower shall forthwith prepay in full all outstanding LIBOR Advances owing by Borrower to such Lender, together with interest accrued thereon, UNLESS Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Option1.15(b).
Appears in 1 contract
Samples: Credit Agreement (Liposome Co Inc)
Capital Adequacy; Increased Costs. (a) If any Lender shall have determined that the adoption any change after the date hereof of Effective Date in any law, treaty, governmental (applicable Law or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, reserve requirements capital maintenance or similar requirements against loan commitments made by Lender (including any such applicable Law or guideline which may be adopted before the date of this Agreement but which requirements are phased in over a period of time), or any change therein, or any change in the interpretation or administration thereof by any Tribunal, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by Lender (or any Lending Office of Lender) or any corporation controlling Lender with any request or directive regarding capital adequacy, reserve requirements capital maintenance or similar requirements (against loan commitments, whether or not having the force of law) from any central bank law (each such adoptions or other Governmental Authority increases modification and each interpretation or administration being herein called a "Regulatory Modification"), has or would have the effect of increasing the amount cost of capital, reserves or other funds required Lender with respect to be maintained by such Lender and thereby this Agreement as a result of reducing the rate of return on Lender's or such Lendercorporation's capital as a consequence of its obligations hereunderhereunder ("Additional Costs") to a level below that which Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration Lender's or such corporation's policies with respect to such capital impositions) by an amount deemed by Lender to be material, then Borrower shall from time to time upon demand by such Lender (with a copy of such demand to Agent) time, Borrower shall pay to Agent, for the account of Lender such Lender, additional amounts sufficient to Additional Costs as will compensate such Lender for such reduction. A certificate No failure by Lender to immediately demand payment of Additional Costs payable hereunder shall constitute a waiver of Lender's right to demand payment of such Additional Costs at any subsequent time. Determinations by Lender for purposes of this Section 2.14 shall be presumed correct, provided that such determinations are made reasonably and in good faith. Nothing contained herein shall be construed or so operate as to the amount of that reduction and showing the basis of the computation thereof submitted require Borrower to pay any interest, fees, costs or charges greater than as permitted by such Lender to Borrower and to Agent shall, absent manifest error, be final, conclusive and binding for all purposesApplicable Law.
(b) If, due after the date hereof, any Tribunal, central bank or other comparable authority, shall at any time impose, modify or deem applicable any reserve (including, without limitation, any imposed by the Board of Governors of the Federal Reserve System), special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, Lender, or shall impose on Lender other conditions affecting a LIBOR Advance, the Notes, or its obligation to make a LIBOR Advance; and the result of any of the foregoing is to increase the cost to Lender of making or maintaining LIBOR Advances, or to reduce the amount of any sum received or receivable by Lender under this Agreement or under the Notes by an amount deemed by Lender to be material, then, within five days after demand by Lender, Borrower shall pay to Lender the additional amount or amounts as will compensate Lender for the increased cost or reduction. A certificate of Lender claiming compensation under this Section 2.14 and setting forth in reasonable detail the calculation of the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. If Lender demands compensation under this Section 2.14, Borrower may at any time, upon at least five Business Days' prior notice to Lender either (i) repay in full the introduction then outstanding principal amount of or any change in any law or regulation (or any change in the interpretation thereof) LIBOR Advances, together with accrued interest thereon, or (ii) convert such LIBOR Advances to Prime Advances in accordance with the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force provisions of law)this Agreement; provided, there however, that Borrower shall be liable for any increase in the cost to any Lender of agreeing to make or making, funding, or maintaining any Loan, then Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to Agent), pay to Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to Borrower and to Agent by such Lender, shall be conclusive and binding on Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers Consequential Loss arising pursuant to this SECTION 1.16such actions.
(c) Notwithstanding anything to the contrary contained hereinany other provision of this Agreement, if the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or administration of any Law shall make it unlawful, or any central bank or other Governmental Authority Tribunal shall assert that it is unlawful, for any Lender to agree perform its obligations hereunder to make or to make or to continue to fund or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Advance at another branch or office of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or the income obtained therefrom, on notice thereof and demand therefor by such Lender to Borrower through Agent, (i) the obligation of such Lender to agree to make or to make Advances or to continue to fund or maintain LIBOR Advances shall terminate hereunder, then, on notice thereof and demand therefor by Lender to Borrower, (i) each LIBOR Advance will automatically, upon such demand, convert into a Prime Advance and (ii) Borrower shall forthwith prepay in full all outstanding the obligation of Lender to make, or to convert into or Continue Advances as, LIBOR Advances owing by shall be suspended until Lender notifies Borrower that Lender has determined that the circumstances causing such suspension no longer exist.
(d) Upon the occurrence and during the continuance of any Default or Event of Default, (i) each LIBOR Advance will automatically, on the last day of the then existing Interest Period therefor, convert into a Prime Advance and (ii) the obligation of Lender to make, or to convert into or Continue Advance as, LIBOR Advances shall be suspended.
(e) Failure on the part of Lender to demand compensation for any increased costs, increased capital or reduction in amounts received or receivable or reduction in return on capital pursuant to this Section 2.14 with respect to any period shall not constitute a waiver of Lender's right to demand compensation with respect to such period or any other period.
(f) The obligations of Borrower under this Section 2.14 shall survive any termination of this Agreement; provided that at no time may Lender demand any compensation under Sections 2.14(a) or (b) for any amount with respect to any period prior to the date which is six months prior to the date of the notice or certificate delivered by Lender pursuant to either Section 2.14(a) or (b); provided further that Lender shall not demand any compensation under Section 2.14(a) or (b) except in accordance with Lender's normal policies for administering loans with similar provisions.
(g) Determinations by Lender for purposes of this Section 2.14 shall be conclusive, together with interest accrued thereon, UNLESS Borrower, within five (5) Business Days after absent manifest error. Any certificate delivered to Borrower by Lender pursuant to this Section 2.14 shall include in reasonable detail the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Optionbasis for Lender's demand for additional compensation.
Appears in 1 contract
Samples: Credit Agreement (Quest Medical Inc)
Capital Adequacy; Increased Costs. (a) If any Lender Creditor shall have determined that the adoption after the date hereof of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, reserve requirements or similar requirements or compliance by any Lender Creditor with any request or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) ), in each case adopted after the Closing Date, from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender Creditor and thereby reducing the rate of return on such LenderCreditor's capital as a consequence of its obligations hereunder, then Borrower Debtor shall from time to time upon demand by such Lender (with a copy of such demand to Agent) Creditor pay to Agent, for the account of such Lender, Creditor additional amounts sufficient to compensate such Lender Creditor for such reduction. A certificate as to the amount of that reduction and showing the basis of the computation thereof submitted by such Lender Creditor to Borrower and to Agent Debtor shall, absent manifest error, be final, conclusive and binding for all purposes.
(b) If, due to either (i) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), in each case adopted after the Closing Date, there shall be any increase in the cost to any Lender Creditor of agreeing to make incur or making, funding, or maintaining incurring any LoanLetter of Credit Obligations, then Borrower Debtor shall from time to time, upon demand by such Lender (with a copy of such demand to Agent)Creditor, pay to Agent for the account of such Lender Creditor additional amounts sufficient to compensate such Lender Creditor for such increased cost. A certificate as to the amount of such increased cost, submitted to Borrower and to Agent Debtor by such LenderCreditor, shall be conclusive and binding on Borrower Debtor for all purposes, absent manifest error. Each Lender Creditor agrees that, as promptly as practicable after it becomes aware of any circumstances referred to above which would result in any such increased cost, the affected Lender Creditor shall, to the extent not inconsistent with such LenderCreditor's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers Debtor pursuant to this SECTION 1.16Section 1.12(b).
(c) Notwithstanding anything to the contrary contained herein, if the introduction of or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central bank or other Governmental Authority shall assert that it is unlawful, for any Lender to agree to make or to make or to continue to fund or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Advance at another branch or office of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or the income obtained therefrom, on notice thereof and demand therefor by such Lender to Borrower through Agent, (i) the obligation of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Advances shall terminate and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR Advances owing by Borrower to such Lender, together with interest accrued thereon, UNLESS Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Option.
Appears in 1 contract
Capital Adequacy; Increased Costs. (a1) If any a Lender shall have determined that the adoption after the date hereof of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, reserve requirements or similar requirements or compliance by any Lender with any request or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) ), in each case, adopted after the Initial Closing Date, from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender and thereby reducing the rate of return on such Lender's capital as a consequence of its obligations hereunder, then Borrower shall from time to time upon demand by such Lender (with a copy of such demand to Administrative Agent) pay to Agent, for the account of such Lender, Lender additional amounts sufficient to compensate such Lender for such reduction. A certificate as to the amount of that reduction and showing the basis of the computation thereof submitted by such Lender to Borrower and to Administrative Agent shall, absent manifest error, be final, conclusive and binding on Borrower for all purposes.
(b2) If, due to either (ia) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or (iib) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), in each case adopted after the Initial Closing Date, there shall be any increase in the cost to any Lender of agreeing to make or making, funding, funding or maintaining any Loan, then Borrower shall from time to time, time upon demand by such Lender (with a copy of such demand to Administrative Agent), ) pay to Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, cost submitted by such Lender to Borrower and to Administrative Agent by such Lendershall, shall absent manifest error, be final, conclusive and binding on Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers pursuant to this SECTION 1.16.
(c3) Notwithstanding anything Within thirty (30) days after receipt by Borrower of written notice and demand from any Lender (an "Affected Lender") for payment of additional amounts or increased costs as provided in Sections 1.10(1), 1.10(2), 1.11(1) or 1.11(2), Borrower may, at its option, notify Administrative Agent and such Affected Lender of its intention to replace such Affected Lender. So long as no Default or Event of Default has occurred and is continuing, Borrower, with the consent of Requisite Lenders, may obtain, at Borrower's expense, a replacement Lender (a "Replacement Lender") for such Affected Lender, which Replacement Lender must be satisfactory to Requisite Lenders. If Borrower obtains a Replacement Lender within ninety (90) days following notice of its intention to do so, such Affected Lender must sell and assign its Loans and, if applicable, Supplemental Loan Commitment, to such Replacement Lender for an amount equal to the contrary contained hereinprincipal balance of all Loans held by such Affected Lender and all accrued interest and Fees with respect thereto through the date of such sale and assignment, if such sale and assignment to be consummated pursuant to an executed Assignment Agreement without the introduction payment of an assignment fee to Administrative Agent; provided that Borrower shall have reimbursed such Affected Lender for the additional amounts or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central bank or other Governmental Authority shall assert increased costs that it is unlawfulentitled to receive under this Agreement through the date of such sale and assignment. Notwithstanding the foregoing, Borrower shall not have the right to obtain a Replacement Lender if such Affected Lender rescinds its demand for any increased costs or additional amounts within fifteen (15) days following its receipt of Borrower's notice of intention to replace such Affected Lender. Furthermore, if Borrower gives a notice of intention to replace and does not so replace such Affected Lender within ninety (90) days thereafter, Borrower's rights under this Section 1.11(3) shall terminate with respect to agree to make such Affected Lender and Borrower shall promptly pay all increased costs or to make or to continue to fund or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Advance at another branch or office of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or the income obtained therefrom, on notice thereof and demand therefor additional amounts demanded by such Affected Lender pursuant to Borrower through AgentSections 1.10(1), (i1.10(2), 1.11(1) the obligation of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Advances shall terminate and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR Advances owing by Borrower to such Lender, together with interest accrued thereon, UNLESS Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Option1.11(2).
Appears in 1 contract
Samples: Credit Agreement (Sr Telecom Inc)
Capital Adequacy; Increased Costs. (a) If any Lender shall have determined that the adoption after the date hereof of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, reserve requirements or similar requirements or compliance by any Lender with any request or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) ), in each case, adopted after the Closing Date, from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender and thereby reducing the rate of return on such Lender's capital as a consequence of its obligations hereunder, then Borrower shall from time to time upon demand by such Lender (with a copy of such demand to Agent) pay to Agent, for the account of such Lender, additional amounts sufficient to compensate such Lender for such reduction. A certificate as to the amount of that reduction and showing the basis of the computation thereof submitted by such Lender to Borrower and to Agent shall, absent manifest error, be final, conclusive and binding for all purposes.
(b) If, due to either (i) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), in each case adopted after the Closing Date, there shall be any increase in the cost to any Lender of agreeing to make or making, funding, funding or maintaining any Loan, then Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to Agent), pay to Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to Borrower and to Agent by such Lender, shall be conclusive and binding on Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers Borrower pursuant to this SECTION 1.16Section 1.16(b).
(c) Notwithstanding anything Within 15 days after receipt by Borrower of written notice and demand from any Lender (an "Affected Lender") for payment of additional amounts or increased costs as provided in Sections 1.16(a) or 1.16(b), Borrower may, at its option, notify Agent and such Affected Lender of its intention to replace the Affected Lender. So long as no Default or Event of Default has occurred and is continuing, Borrower, with the consent of Agent, may obtain, at Borrower's expense, a replacement Lender ("Replacement Lender") for the Affected Lender, which Replacement Lender must be reasonably satisfactory to Agent. If Borrower obtains a Replacement Lender within 90 days following notice of its intention to do so, the Affected Lender must sell and assign its Loans and Commitments to such Replacement Lender for an amount equal to the contrary contained hereinprincipal balance of all Loans held by the Affected Lender and all accrued interest and Fees with respect thereto through the date of such sale; provided, if that Borrower shall have reimbursed such Affected Lender for the introduction of additional amounts or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central bank or other Governmental Authority shall assert increased costs that it is unlawful, for any Lender entitled to agree to make or to make or to continue to fund or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Advance at another branch or office of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or receive under this Agreement through the income obtained therefrom, on notice thereof and demand therefor by such Lender to Borrower through Agent, (i) the obligation date of such sale and assignment. Notwithstanding the foregoing, Borrower shall not have the right to obtain a Replacement Lender if the Affected Lender rescinds its demand for increased costs or additional amounts within 15 days following its receipt of Borrower's notice of intention to agree replace such Affected Lender. Furthermore, if Borrower gives a notice of intention to make or to make or to continue to fund or maintain LIBOR Advances replace and does not so replace such Affected Lender within 90 days thereafter, Borrower's rights under this Section 1.16
(d) shall terminate and (ii) Borrower shall forthwith prepay in full promptly pay all outstanding LIBOR Advances owing increased costs or additional amounts demanded by Borrower such Affected Lender pursuant to such LenderSections 1.15(a), together with interest accrued thereon, UNLESS Borrower, within five (51.16(a) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Option1.16(b).
Appears in 1 contract
Capital Adequacy; Increased Costs. (a1) If any Lender shall have determined that the adoption after the date hereof of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, reserve requirements or similar requirements or compliance by any Lender with any request or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) ), in each case, adopted after the Closing Date, from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender and thereby reducing the rate of return on such Lender's capital as a consequence of its obligations hereunder, then Borrower shall from time to time upon demand by such Lender (with a copy of such demand to Agent) pay to Agent, for the account of such Lender, Lender additional amounts sufficient to compensate such Lender for such reduction. A certificate as to the amount of that reduction and showing the basis of the computation thereof submitted by such Lender to Borrower and to Agent shall, absent manifest error, be final, conclusive and binding for all purposes.
(b2) If, due to either (ia) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or (iib) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), in each case adopted after the Closing Date, there shall be any increase in the cost to any Lender of agreeing to make or making, funding, funding or maintaining any Loan, then Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to Agent), pay to Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to Borrower and to Agent by such Lender, shall be conclusive and binding on Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers Borrower pursuant to this SECTION 1.16Section 1.16(2).
(c) Notwithstanding anything to the contrary contained herein, if the introduction of or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central bank or other Governmental Authority shall assert that it is unlawful, for any Lender to agree to make or to make or to continue to fund or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Advance at another branch or office of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or the income obtained therefrom, on notice thereof and demand therefor by such Lender to Borrower through Agent, (i) the obligation of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Advances shall terminate and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR Advances owing by Borrower to such Lender, together with interest accrued thereon, UNLESS Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Option.
Appears in 1 contract
Capital Adequacy; Increased Costs. (a) If any Lender shall have determined or the Issuing Bank determines that the adoption after the date hereof of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, reserve requirements or similar requirements or compliance by any Lender with any request or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender and thereby reducing the rate of return on such Lender's capital as a consequence of its obligations hereunder, then Borrower shall from time to time upon demand by such Lender (with a copy of such demand to Agent) pay to Agent, for the account of such Lender, additional amounts sufficient to compensate such Lender for such reduction. A certificate as to the amount of that reduction and showing the basis of the computation thereof submitted by such Lender to Borrower and to Agent shall, absent manifest error, be final, conclusive and binding for all purposes.
(b) If, due to either (i) the introduction of or any change in any law law, order or regulation (or any change in the interpretation thereof) or administration of any law, order or regulation by any Governmental Authority charged with the interpretation or administration thereof after the date hereof or (ii) the compliance with any guideline or request issued or made after the date hereof from any central bank or other Governmental Authority (whether or not having the force of law)) has or would have the effect of reducing the rate of return on the capital of such Lender or the Issuing Bank or any corporation controlling such Lender or the Issuing Bank, there shall be any increase in the cost as a consequence of or with reference to any Lender of agreeing to make this Agreement, such Lender's Commitment or making, fundingits making or maintaining Loans, or maintaining any Loanthe Issuing Bank's issuing or maintaining, or such Lenders participating in, Letters of Credit, below the rate which such Lender or the Issuing Bank or such other corporation could have achieved but for such compliance (taking into account the policies of such Lender or the Issuing Bank or such corporation with regard to capital) by an amount deemed by such Lender or the Issuing Bank, as applicable, to be material, then Borrower shall from time to time, upon demand by such Lender or the Issuing Bank (with a copy of such demand to the Agent), pay to Agent for the account of such Lender or the Issuing Bank, as applicable, additional amounts sufficient to compensate such Lender or the Issuing Bank, as applicable, for such increased cost. A reduction, upon receipt by Borrower (with a copy to the Agent) of a certificate as to the amount of such increased costamounts, submitted to Borrower and to Agent by such LenderLender or the Issuing Bank, as applicable, setting forth in reasonable detail the basis for, and the calculations used by such Lender or the Issuing Bank, as applicable, in determining, any such amounts. Such certificate, in the absence of manifest error, shall be conclusive and binding on Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers pursuant to this SECTION 1.16.
(cb) Notwithstanding anything to In the contrary contained herein, if event that after the introduction date hereof (i) the adoption of or any change in any law law, treaty, rule, regulation, guideline or regulation (determination of a Governmental Authority or any change in the 44 51 interpretation thereof) shall make it unlawfulor application thereof by a Governmental Authority, or (ii) compliance by any Lender or the Issuing Bank with any request or directive (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) from any central bank or other Governmental Authority shall assert that it is unlawfulor quasi-governmental authority exercising jurisdiction, for any Lender to agree to make power or to make control over banks or to continue to fund financial institutions generally, does impose, modify, or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Advance at another branch or office of that Lender withouthold applicable, in that the determination of a Lender's opinion, adversely affecting it any reserve, special deposit, compulsory loan, FDIC insurance, capital allocation or its Loans similar requirement against assets held by, or deposits or other liabilities in or for the income obtained therefromaccount of, on notice thereof and demand therefor by such advances or loans by, commitments made, letters of credit issued or participated in, or other credit extended by, or any other acquisition of funds by, a Lender to Borrower through Agent, (i) the obligation or any Applicable Lending Office of such Lender (except with respect to agree Base Rate Loans, so long as the Alternate Base Rate in effect at the time is determined by reference to make the Prime Rate) or the Issuing Bank which is not otherwise taken into account in the calculation of the Adjusted LIBO Rate or the Alternate Base Rate, and the result of any of the foregoing is to increase the cost to such Lender or the Issuing Bank of making, renewing or maintaining the Loans or its Commitment or issuing, maintaining or participating in any Letter of Credit or to make reduce any amount receivable hereunder or to continue to fund or maintain LIBOR Advances shall terminate and (ii) thereunder; then, in any such case, Borrower shall forthwith prepay in full all outstanding LIBOR Advances owing upon written notice from and demand by Borrower that Lender or the Issuing Bank pay to such LenderLender or the Issuing Bank, together with interest accrued thereon, UNLESS Borroweras applicable, within five fifteen (515) Business Days after of the delivery of date specified in such notice and demand, converts such amount or amounts (based upon a reasonable allocation thereof by such Lender or the Issuing Bank, as applicable, to the financing transactions contemplated by this Agreement and affected by this Section 2.11(b)) as may be necessary to compensate that Lender or the Issuing Bank, as applicable, for any such additional cost incurred or reduced amount received. Such Lender or the Issuing Bank, as applicable, shall deliver to the Borrower with any such notice and demand a certificate setting forth in reasonable detail the basis for, and the calculations used by such Lender or the Issuing Bank, as applicable, in determining, the costs or reductions so claimed and the allocation made by such Lender or the Issuing Bank, as applicable, of such costs and reductions. Such certificate, in the absence of manifest error, shall be conclusive and binding for all purposes. If a Lender or the Issuing Bank, as applicable, subsequently recovers from another Person any amount previously paid by Borrower pursuant to this Section 2.11(b), such Loans into a Loan bearing interest based Lender or the Issuing Bank, as applicable, shall, within thirty (30) days after receipt of such refund and to the extent permitted by applicable law, pay to the Borrower, without interest, the amount of any such recovery.
(c) Failure or delay on the Prime Rate Optionpart of any Lender or the Issuing Bank to demand compensation pursuant to this Section 2.11 shall not constitute a waiver of such Lender's or the Issuing Bank's right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or the Issuing Bank pursuant to this Section 2.11 for any increased costs or reduction incurred more than 180 days prior to the date that such Lender or the Issuing Bank, as the case may be, notifies the Borrower of the circumstances giving rise to such increased costs or reductions and of such Lender's or the Issuing Bank's intention to claim compensation therefor; provided further that, if the change or compliance giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. 52 (d) If any Lender requests compensation under this Section 2.11, then such Lender shall use reasonable efforts to designate a different Applicable Lending Office for funding or booking its Loans hereunder, if, in the reasonable judgment of such Lender, such designation (i) would eliminate or reduce amounts payable pursuant to this Section 2.11 in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.
Appears in 1 contract
Capital Adequacy; Increased Costs. Illegality. ---------------------------------------------
(a) If any Lender shall have determined that the adoption after the date hereof of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, reserve requirements or similar requirements or compliance by any Lender with any request or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender and thereby reducing the rate of return on such Lender's capital as a consequence of its obligations hereunder, then Borrower shall from time to time upon demand by such Lender (with a copy of such demand to Agent) pay to Agent, for the account of such Lender, additional amounts sufficient to compensate such Lender for such reduction. A certificate as to the amount of that reduction and showing the basis of the computation thereof submitted by such Lender to Borrower and to Agent shall, absent manifest error, be final, conclusive and binding for all purposes.
(b) If, due to either (i) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Lender of agreeing to make or making, funding, funding or maintaining any Loan, then Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to Agent), pay to Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to Borrower and to Agent by such Lender, shall be conclusive and binding on Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers Borrower pursuant to this SECTION 1.16.Section 1.16(b). ---------------
(c) Notwithstanding anything to the contrary contained herein, if the introduction of or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central bank or other Governmental Authority shall assert that it is unlawful, for any Lender to agree to make or to make or to continue to fund or maintain any LIBOR AdvanceLoan, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Advance Loan at another branch or office of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or the income obtained therefrom, on notice thereof and demand therefor by such Lender to Borrower through Agent, (i) the obligation of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Advances Loans shall terminate and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR Advances Loans owing by Borrower to such Lender, together with interest accrued thereonthereon (but without LIBOR breakage costs), UNLESS unless Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Index Rate Option(which conversion shall be without LIBOR breakage costs).
Appears in 1 contract
Capital Adequacy; Increased Costs. (a) If any Lender shall have determined that the adoption after the date hereof of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, reserve requirements or similar requirements or compliance by any Lender with any request or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) ), in each case, adopted after the Closing Date, from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender and thereby reducing the rate of return on such Lender's capital as a consequence of its obligations hereunder, then Borrower shall from time to time upon demand by such Lender (with a copy of such demand to Agent) pay to Agent, for the account of such Lender, additional amounts sufficient to compensate such Lender for such reduction. A certificate as to the amount of that reduction and showing the basis of the computation thereof submitted by such Lender to Borrower and to Agent shall, absent manifest error, be final, conclusive and binding for all purposes.
(b) If, due to either (i) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), in each case adopted after the Closing Date, there shall be any increase in the cost to any Lender of agreeing to make or making, funding, funding or maintaining any Loan, then Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to Agent), pay to Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to Borrower and to Agent by such Lender, shall be conclusive and binding on Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers Borrower pursuant to this SECTION 1.16Section 1.18(b).
(c) Notwithstanding anything to the contrary contained herein, if the introduction of or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central bank or other Governmental Authority shall assert that it is unlawful, for any Lender to agree to make or to make or to continue to fund or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Advance at another branch or office of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or the income obtained therefrom, on notice thereof and demand therefor by such Lender to Borrower through Agent, (i) the obligation of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Advances shall terminate and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR Advances owing by Borrower to such Lender, together with interest accrued thereon, UNLESS Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Option.
Appears in 1 contract
Capital Adequacy; Increased Costs. (a) If a Lender determines that any introduction of or any change in a Capital Adequacy Regulation, any change in the interpretation or administration of a Capital Adequacy Regulation by a Governmental Authority charged with interpretation or administration thereof, or any compliance by such Lender shall have determined that the adoption or any Person controlling such Lender with a Capital Adequacy Regulation, in each case made after the date hereof of any lawhereof, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, reserve requirements or similar requirements or compliance by any Lender with any request or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves capital or other funds liquidity required or expected to be maintained by such Lender or Person (taking into consideration its capital adequacy and thereby reducing the rate of liquidity policies and desired return on such Lender's capital capital) as a consequence of its such Lender’s Pro Rata Share of the Term Loan or other obligations hereunderunder the Loan Documents, then the Borrower shall from time to time upon shall, within thirty days following demand by therefor, pay such Lender (with a copy of such demand to Agent) pay to Agent, for the account of such Lender, additional amounts an amount sufficient to compensate such Lender for such reductionincrease. A certificate as Lender’s demand for payment shall set forth the nature of the occurrence giving rise to such compensation and a calculation of the amount of that reduction to be paid. In determining such amount, the Lender may use any reasonable averaging and showing the basis of the computation thereof submitted by such Lender to Borrower and to Agent shall, absent manifest error, be final, conclusive and binding for all purposesattribution method.
(b) IfIf any Change in Law shall subject the Agent or any Lender to any Taxes (other than Excluded Taxes and Indemnified Taxes) on its loans, due loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto and the result of any of the foregoing shall be to either increase the cost to such Lender or the Agent of making, converting to, continuing or maintaining any loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender or the Agent of participating in, or to reduce the amount of any sum received or receivable by such Lender or the Agent hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the Agent, the Borrower will, no later than 30 days following such request, pay to such Lender or the Agent, as the case may be, such additional amount or amounts as will compensate such Lender or the Agent, as the case may be, for such additional costs incurred or reduction suffered.
(c) If any Lender requests additional or increased costs referred to in this Section 2.7 (such Lender, an “Affected Lender”), then such Affected Lender shall use reasonable efforts to promptly designate a different one of its lending offices or to assign its rights and obligations hereunder to another of its offices or branches, if (i) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) reasonable judgment of such Affected Lender, such designation or assignment would eliminate or reduce amounts payable pursuant to this Section 2.7, or would eliminate the illegality or impracticality of funding or maintaining the Term Loan and (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost reasonable judgment of such Affected Lender, such designation or assignment would not subject it to any Lender of agreeing material unreimbursed cost or expense and would not otherwise be materially disadvantageous to make or making, funding, or maintaining any Loan, then it. Borrower shall from time agrees to time, upon demand by such Lender (with a copy of such demand to Agent), pay to Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to Borrower and to Agent by such Lender, shall be conclusive and binding on Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize out-of-pocket costs and expenses incurred by it and payable such Affected Lender in connection with any such designation or assignment. If, after such reasonable efforts, such Affected Lender does not so designate a different one of its lending offices or assign its rights to it by Borrowers another of its offices or branches so as to eliminate Borrower’s obligation to pay any future amounts to such Affected Lender pursuant to this SECTION 1.16.
Section 2.7, as applicable, or to enable Borrower to continue to obtain the Term Loan, then Administrative Borrower (cwithout prejudice to any amounts then due to such Affected Lender hereunder) Notwithstanding anything may, unless prior to the contrary contained herein, if effective date of any such assignment the introduction of or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawfulAffected Lender withdraws its request for such additional amounts under this Section 2.7, or any central bank or other Governmental Authority shall assert indicates that it is unlawful, for any Lender to agree to make no longer unlawful or to make or impractical to continue to fund or maintain any LIBOR Advancethe Term Loan, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Advance at another branch or office of that Lender withoutmay designate a substitute a Lender, in that Lender's opinioneach case, adversely affecting it or its Loans or the income obtained therefrom, on notice thereof and demand therefor by such Lender reasonably acceptable to Borrower through Agent, to purchase the Obligations owed to such Affected Lender (iand its Affiliates) and such Affected Lender’s (and its Affiliates’) commitments hereunder (a “Replacement Lender”), and if such Replacement Lender agrees to such purchase, such Affected Lender (and its Affiliates) shall assign to the obligation Replacement Lender its Obligations and commitments and upon such purchase by the Replacement Lender, such Replacement Lender shall be deemed to be “a “Lender” for purposes of this Agreement and such Affected Lender shall cease to be a “Lender” (as the case may be) for purposes of this Agreement (in which circumstances the Affected Lender shall not receive any Early Termination Fee).
(d) Notwithstanding anything herein to the contrary, the protection of this Section 2.7 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, judicial ruling, judgment, guideline, treaty or other change or condition which shall have occurred or been imposed, so long as it shall be customary for Lenders affected thereby to comply therewith. Notwithstanding any other provision herein, Lender shall demand compensation pursuant to this Section 2.7 if it shall not at the time be the general policy or practice of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Advances shall terminate and (ii) Borrower shall forthwith prepay demand such compensation in full all outstanding LIBOR Advances owing by Borrower to such Lendersimilar circumstances under comparable provisions of other credit agreements, together with interest accrued thereon, UNLESS Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Optionif any.
Appears in 1 contract
Samples: Credit Agreement (Birks Group Inc.)
Capital Adequacy; Increased Costs. (a1) If any a Lender shall have determined that the adoption after the date hereof of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, reserve requirements or similar requirements or compliance by any Lender with any request or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) ), in each case, adopted after the Closing Date, from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender and thereby reducing the rate of return on such Lender's capital as a consequence of its obligations hereunder, then Borrower shall from time to time upon demand by such Lender (with a copy of such demand to Administrative Agent) pay to Agent, for the account of such Lender, Lender additional amounts sufficient to compensate such Lender for such reduction. A certificate as to the amount of that reduction and showing the basis of the computation thereof submitted by such Lender to Borrower and to Administrative Agent shall, absent manifest error, be final, conclusive and binding on Borrower for all purposes.
(b2) If, due to either (ia) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or (iib) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), in each case adopted after the Closing Date, there shall be any increase in the cost to any Lender of agreeing to make or making, funding, funding or maintaining any Loan, then Borrower shall from time to time, time upon demand by such Lender (with a copy of such demand to Administrative Agent), ) pay to Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, cost submitted by such Lender to Borrower and to Administrative Agent by such Lendershall, shall absent manifest error, be final, conclusive and binding on Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers pursuant to this SECTION 1.16.
(c3) Notwithstanding anything Within thirty (30) days after receipt by Borrower of written notice and demand from any Lender (an "Affected Lender") for payment of additional amounts or increased costs as provided in Sections 1.13(1), 1.13(2), 1.14(1) or 1.14(2), Borrower may, at its option, notify Administrative Agent and such Affected Lender of its intention to replace such Affected Lender. So long as no Default or Event of Default has occurred and is continuing, Borrower, with the consent of Requisite Lenders, may obtain, at Borrower's expense, a replacement Lender (a "Replacement Lender") for such Affected Lender, which Replacement Lender must be satisfactory to Requisite Lenders. If Borrower obtains a Replacement Lender within ninety (90) days following notice of its intention to do so, such Affected Lender must sell and assign its Loans and Commitment to such Replacement Lender for an amount equal to the contrary contained hereinprincipal balance of all Loans held by such Affected Lender and all accrued interest and Fees with respect thereto through the date of such sale and assignment, if such sale and assignment to be consummated pursuant to an executed Assignment Agreement without the introduction payment of an assignment fee to Administrative Agent; provided that Borrower shall have reimbursed such Affected Lender for the additional amounts or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central bank or other Governmental Authority shall assert increased costs that it is unlawfulentitled to receive under this Agreement through the date of such sale and assignment. Notwithstanding the foregoing, Borrower shall not have the right to obtain a Replacement Lender if such Affected Lender rescinds its demand for any increased costs or additional amounts within fifteen (15) days following its receipt of Borrower's notice of intention to replace such Affected Lender. Furthermore, if Borrower gives a notice of intention to replace and does not so replace such Affected Lender within ninety (90) days thereafter, Borrower's rights under this Section 1.14(3) shall terminate with respect to agree to make such Affected Lender and Borrower shall promptly pay all increased costs or to make or to continue to fund or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Advance at another branch or office of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or the income obtained therefrom, on notice thereof and demand therefor additional amounts demanded by such Affected Lender pursuant to Borrower through AgentSections 1.13(1), (i1.13(2), 1.14(1) the obligation of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Advances shall terminate and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR Advances owing by Borrower to such Lender, together with interest accrued thereon, UNLESS Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Option1.14(2).
Appears in 1 contract
Samples: Credit Agreement (Sr Telecom Inc)
Capital Adequacy; Increased Costs. (a) If any Lender Bank shall have determined that (i) the adoption after the date hereof introduction of any lawCapital Adequacy Regulation, treaty, governmental (ii) any change in any Capital Adequacy Regulation or quasi-governmental(iii) rule, regulation, guideline any change in the interpretation or order regarding capital adequacy, reserve requirements or similar requirements or compliance administration of any Capital Adequacy Regulation by any Lender with any request or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) from any central bank or other Governmental Authority increases charged with the interpretation or administration thereof, in each case occurring after the date hereof, affects or would have the effect of increasing affect the amount of capital, reserves capital required or other funds required expected to be maintained by such Lender Bank or any corporation controlling such Bank and thereby reducing the rate of (taking into consideration such Bank’s or such corporation’s policies with respect to capital adequacy and such Bank’s desired return on capital) determines that the amount of such Lender's capital is increased as a consequence of its Commitment, loans or obligations hereunderunder this Agreement, then Borrower then, within 10 days after demand of such Bank to the Borrowers through the Administrative Agent (which demand shall be in writing and shall set forth in reasonable detail the calculation of such amounts), each of the Borrowers severally shall pay to such Bank, from time to time upon demand as specified by such Lender (with a copy the Bank, its pro rata share of such demand to Agent) pay to Agent, for the account of such Lender, additional amounts sufficient to compensate such Lender the Bank for such reductionincrease. A certificate as Notwithstanding anything herein to the amount of that reduction and showing the basis of the computation thereof submitted by such Lender to Borrower and to Agent shall, absent manifest error, be final, conclusive and binding for all purposes.
(b) If, due to either (i) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Lender of agreeing to make or making, funding, or maintaining any Loan, then Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to Agent), pay to Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to Borrower and to Agent by such Lender, shall be conclusive and binding on Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers pursuant to this SECTION 1.16.
(c) Notwithstanding anything to the contrary contained herein, if the introduction of or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central bank or other Governmental Authority shall assert that it is unlawful, for any Lender to agree to make or to make or to continue to fund or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Advance at another branch or office of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or the income obtained therefrom, on notice thereof and demand therefor by such Lender to Borrower through Agentcontrary, (i) the obligation Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith shall be deemed to be a change in Capital Adequacy Regulation, regardless of such Lender to agree to make the date enacted, adopted or to make or to continue to fund or maintain LIBOR Advances shall terminate issued, and (ii) Borrower all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall forthwith prepay in full all outstanding LIBOR Advances owing by Borrower each case be deemed to such Lenderbe a change in Capital Adequacy Regulation regardless of the date enacted, together with interest accrued thereonadopted, UNLESS Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Optionissued or implemented.
Appears in 1 contract
Samples: Credit Agreement (Blackrock Funds)
Capital Adequacy; Increased Costs. The Borrower further agrees --------------------------------- to reimburse the Bank and/or its holding company for any increase in the cost of making, continuing, maintaining or converting (or of the obligation to make, continue, maintain or convert) any Loans hereunder (or any portion thereof) and for any reduction in the amount of any sum receivable by such Bank hereunder in respect of making, continuing, maintaining or converting (or of its obligation to make, continue, maintain or convert) any Loans hereunder (or any portion thereof) from time to time by reason of:
(a) If any Lender shall have determined that to the extent not included in the calculation of the LIBO Rate (Reserve Adjusted), the adoption after or compliance with any capital adequacy, reserve, special deposit, or similar requirement against assets of, deposits with or for the date hereof of account of, or credit extended by, such Bank and/or its holding company, under or pursuant to any law, treaty, governmental (or quasi-governmental) rule, regulation (including any F.R.S. Board regulation), guideline or order regarding capital adequacyrequirement in effect on the date hereof, reserve requirements or similar requirements as the result of any Regulatory Change; or
(b) any Regulatory Change which shall subject such Bank and/or its holding company to any tax (other than taxes on net income or compliance by receipts), levy, impost, charge, fee, duty, deduction, or withholding of any Lender with kind whatsoever or change the taxation of any request Loan made or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender and thereby reducing the rate of return on such Lender's capital as a consequence LIBO Rate Loan and the interest thereon (other than any change which affects, and to the extent that it affects, the taxation of its obligations hereundernet income or receipts). In any such event, then each Bank shall promptly notify the Borrower shall from time to time upon demand by such Lender (with a copy of such demand notice to the Agent) pay thereof stating the reasons therefor and the additional amount required fully to Agent, compensate the Bank and/or its holding company for the account such increased cost or reduced amount. Such additional amounts shall be payable on demand after receipt of such Lender, additional amounts sufficient to compensate such Lender for such reductionnotice. A certificate statement as to the any such increased cost or reduced amount of that reduction and showing the basis of the computation thereof submitted by such Lender to Borrower and to Agent shall, absent manifest error, be final, conclusive and binding for all purposes.
(b) If, due to either (i) the introduction of or any change therein (including calculations thereof in any law or regulation (or any change in the interpretation thereofreasonable detail) or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in submitted by the cost to any Lender of agreeing to make or making, funding, or maintaining any Loan, then Borrower shall from time to time, upon demand by such Lender Bank (with a copy of such demand to Agent), pay to Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as notice to the amount of such increased cost, submitted Agent) to the Borrower and to Agent by such Lendershall, shall in the absence of demonstrable error, be conclusive and binding on the Borrower. In the event that the Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred is required to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers pay an additional amount pursuant to this SECTION 1.16.
(c) Notwithstanding anything Section ------- 4.4 to any Bank and/or its holding company, then the contrary contained herein, if Borrower shall have the introduction of or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central --- right to seek a substitute bank or other Governmental Authority shall assert that it is unlawful, for any Lender banks to agree to make or to make or to continue to fund or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain replace such LIBOR Advance at another branch or office Bank under this Agreement in accordance with the provisions of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or the income obtained therefrom, on notice thereof and demand therefor by such Lender to Borrower through Agent, (i) the obligation of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Advances shall terminate and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR Advances owing by Borrower to such Lender, together with interest accrued thereon, UNLESS Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Option.Section 10.11(b). ----------------
Appears in 1 contract
Samples: Senior Revolving Loan Agreement (Consol Energy Inc)
Capital Adequacy; Increased Costs. The Borrower further --------------------------------- agrees to reimburse the Bank and/or its holding company for any increase in the cost of making, continuing, maintaining or converting (or of the obligation to make, continue, maintain or convert) any Loans hereunder (or any portion thereof) and for any reduction in the amount of any sum receivable by such Bank hereunder in respect of making, continuing, maintaining or converting (or of its obligation to make, continue, maintain or convert) any Loans hereunder (or any portion thereof) from time to time by reason of:
(a) If any Lender shall have determined that to the extent not included in the calculation of the LIBO Rate (Reserve Adjusted), the adoption after or compliance with any capital adequacy, reserve, special deposit, or similar requirement against assets of, deposits with or for the date hereof of account of, or credit extended by, such Bank and/or its holding company, under or pursuant to any law, treaty, governmental (or quasi-governmental) rule, regulation (including any F.R.S. Board regulation), guideline or order regarding capital adequacyrequirement in effect on the date hereof, reserve requirements or similar requirements as the result of any Regulatory Change; or
(b) any Regulatory Change which shall subject such Bank and/or its holding company to any tax (other than taxes on net income or compliance by receipts), levy, impost, charge, fee, duty, deduction, or withholding of any Lender with kind whatsoever or change the taxation of any request Loan made or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender and thereby reducing the rate of return on such Lender's capital as a consequence LIBO Rate Loan and the interest thereon (other than any change which affects, and to the extent that it affects, the taxation of its obligations hereundernet income or receipts). In any such event, then each Bank shall promptly notify the Borrower shall from time to time upon demand by such Lender (with a copy of such demand notice to the Agent) pay thereof stating the reasons therefor and the additional amount required fully to Agent, compensate the Bank and/or its holding company for the account such increased cost or reduced amount. Such additional amounts shall be payable on demand after receipt of such Lender, additional amounts sufficient to compensate such Lender for such reductionnotice. A certificate statement as to the any such increased cost or reduced amount of that reduction and showing the basis of the computation thereof submitted by such Lender to Borrower and to Agent shall, absent manifest error, be final, conclusive and binding for all purposes.
(b) If, due to either (i) the introduction of or any change therein (including calculations thereof in any law or regulation (or any change in the interpretation thereofreasonable detail) or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in submitted by the cost to any Lender of agreeing to make or making, funding, or maintaining any Loan, then Borrower shall from time to time, upon demand by such Lender Bank (with a copy of such demand to Agent), pay to Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as notice to the amount of such increased cost, submitted Agent) to the Borrower and to Agent by such Lendershall, shall in the absence of demonstrable error, be conclusive and binding on the Borrower. In the event that the Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred is required to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers pay an additional amount pursuant to this SECTION 1.16.
(c) Notwithstanding anything Section 4.4 to any Bank and/or its holding company, then the contrary contained herein, if Borrower shall have ----------- the introduction of or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central right to seek a substitute bank or other Governmental Authority shall assert that it is unlawful, for any Lender banks to agree to make or to make or to continue to fund or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain replace such LIBOR Advance at another branch or office Bank under this Agreement in accordance with the provisions of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or the income obtained therefrom, on notice thereof and demand therefor by such Lender to Borrower through Agent, (i) the obligation of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Advances shall terminate and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR Advances owing by Borrower to such Lender, together with interest accrued thereon, UNLESS Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Option.Section 10.11(b). ----------------
Appears in 1 contract
Samples: Senior Revolving Loan Agreement (Consol Energy Inc)
Capital Adequacy; Increased Costs. (a) If any Lender shall have determined or the Issuing Bank determines that the adoption after the date hereof of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, reserve requirements or similar requirements or compliance by any Lender with any request or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender and thereby reducing the rate of return on such Lender's capital as a consequence of its obligations hereunder, then Borrower shall from time to time upon demand by such Lender (with a copy of such demand to Agent) pay to Agent, for the account of such Lender, additional amounts sufficient to compensate such Lender for such reduction. A certificate as to the amount of that reduction and showing the basis of the computation thereof submitted by such Lender to Borrower and to Agent shall, absent manifest error, be final, conclusive and binding for all purposes.
(b) If, due to either (i) the introduction of or any change in any law law, order or regulation (or any change in the interpretation thereof) or administration of any law, order or regulation by any Governmental Authority charged with the interpretation or administration thereof after the date hereof or (ii) the compliance with any guideline or request issued or made after the date hereof from any central bank or other Governmental Authority (whether or not having the force of law)) has or would have the effect of reducing the rate of return on the capital of such Lender or the Issuing Bank or any corporation controlling such Lender or the Issuing Bank, there shall be any increase in the cost as a consequence of or with reference to any Lender of agreeing to make this Agreement, such Lender's Commitment or making, fundingits making or maintaining Loans, or maintaining any Loanthe Issuing Bank's issuing or maintaining, or such Lenders participating in, Letters of Credit, below the rate which such Lender or the Issuing Bank or such other corporation could have achieved but for such compliance (taking into account the policies of such Lender or the Issuing Bank or such corporation with regard to capital) by an amount deemed by such Lender or the Issuing Bank, as applicable, to be material, then Borrower shall from time to time, upon demand by such Lender or the Issuing Bank (with a copy of such demand to the Agent), pay to Agent for the account of such Lender or the Issuing Bank, as applicable, additional amounts sufficient to compensate such Lender or the Issuing Bank, as applicable, for such increased cost. A reduction, upon receipt by Borrower (with a copy to the Agent) of a certificate as to the amount of such increased costamounts, submitted to Borrower and to Agent by such LenderLender or the Issuing Bank, as applicable, setting forth in reasonable detail the basis for, and the calculations used by such Lender or the Issuing Bank, as applicable, in determining, any such amounts. Such certificate, in the absence of manifest error, shall be conclusive and binding on Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers pursuant to this SECTION 1.16.
(cb) Notwithstanding anything to In the contrary contained herein, if event that after the introduction date hereof (i) the adoption of or any change in any law law, treaty, rule, regulation, guideline or regulation (determination of a Governmental Authority or any change in the interpretation thereof) shall make it unlawfulor application thereof by a Governmental Authority, or any central bank or other Governmental Authority shall assert that it is unlawful, for any Lender to agree to make or to make or to continue to fund or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Advance at another branch or office of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or the income obtained therefrom, on notice thereof and demand therefor by such Lender to Borrower through Agent, (i) the obligation of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Advances shall terminate and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR Advances owing compliance by Borrower to such Lender, together any Lender or the Issuing Bank with interest accrued thereon, UNLESS Borrower, within five any request or directive (5) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Option.whether or not
Appears in 1 contract
Capital Adequacy; Increased Costs. (a1) If any Lender shall have determined that the adoption after the date hereof of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, reserve requirements or similar requirements or compliance by any Lender with any request or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) ), in each case, adopted after the Closing Date, from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender and thereby reducing the rate of return on such Lender's ’s capital as a consequence of its obligations hereunder, then Borrower shall from time to time upon demand by such Lender (with a copy of such demand to Agent) pay to Agent, Agent for the account of such Lender, Lender additional amounts sufficient to compensate such Lender for such reduction. A certificate as to the amount of that reduction and showing the basis of the computation thereof submitted by such Lender to Borrower and to the Agent shall, absent manifest error, be final, conclusive and binding for all purposes.
(b2) If, due to either (ia) the introduction of or any change in any law or regulation (or any change in the interpretation thereof) or (iib) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), in each case adopted after the Closing Date, there shall be any increase in the cost to any Lender of agreeing to make or making, funding, funding or maintaining any Loan, then Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to Agent), ) pay to Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to Borrower and to Agent by such Lender, shall be conclusive and binding on Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's ’s internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers Borrower pursuant to this SECTION 1.16Section 1.16(2).
(c3) Notwithstanding anything Within thirty (30) days after receipt by Borrower of written notice and demand from any Lender (an “Affected Lender”) for payment of additional amounts or increased costs as provided in Sections 1.15(a), 1.16(1) or 1.16(2), Borrower may, at its option, notify Agent and such Affected Lender of its intention to replace the Affected Lender. So long as no Default or Event of Default has occurred and is continuing, Borrower, with the consent of Agent, may obtain, at Borrower’s expense, a replacement Lender (“Replacement Lender”) for the Affected Lender, which Replacement Lender must be reasonably satisfactory to Agent. If Borrower obtains a Replacement Lender within ninety (90) days following notice of its intention to do so, the Affected Lender must sell and assign its Loans and Commitments to such Replacement Lender for an amount equal to the contrary contained hereinprincipal balance of all Loans held by the Affected Lender and all accrued interest and Fees with respect thereto through the date of such sale and such assignment shall not require the payment of an assignment fee to Agent; provided, if that Borrower shall have reimbursed such Affected Lender for the introduction of additional amounts or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central bank or other Governmental Authority shall assert increased costs that it is unlawfulentitled to receive under this Agreement through the date of such sale and assignment. Notwithstanding the foregoing, Borrower shall not have the right to obtain a Replacement Lender if the Affected Lender rescinds its demand for any increased costs or additional amounts within 15 days following its receipt of Borrower’s notice of intention to replace such Affected Lender. Furthermore, if Borrower gives a notice of intention to replace and does not so replace such Affected Lender within ninety (90) days thereafter, Borrower’s rights under this Section 1.16(d) shall terminate with respect to agree to make such Affected Lender and Borrower shall promptly pay all increased costs or to make or to continue to fund or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Advance at another branch or office of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or the income obtained therefrom, on notice thereof and demand therefor additional amounts demanded by such Affected Lender pursuant to Borrower through AgentSections 1.15(a), (i1.16(1) the obligation of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Advances shall terminate and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR Advances owing by Borrower to such Lender, together with interest accrued thereon, UNLESS Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Option1.16(2).
Appears in 1 contract
Samples: Credit Agreement (Solo Cup CO)
Capital Adequacy; Increased Costs. The Borrower further agrees --------------------------------- to reimburse the Bank and/or its holding company for any increase in the cost of making, continuing, maintaining or converting (or of the obligation to make, continue, maintain or convert) any Loans hereunder (or any portion thereof) and for any reduction in the amount of any sum receivable by such Bank hereunder in respect of making, continuing, maintaining or converting (or of its obligation to make, continue, maintain or convert) any Loans hereunder (or any portion thereof) from time to time by reason of:
(a) If any Lender shall have determined that to the extent not included in the calculation of the LIBO Rate (Reserve Adjusted), the adoption after or compliance with any capital adequacy, reserve, special deposit, or similar requirement against assets of, deposits with or for the date hereof of account of, or credit extended by, such Bank and/or its holding company, under or pursuant to any law, treaty, governmental (or quasi-governmental) rule, regulation (including any F.R.S. Board regulation), guideline or order regarding capital adequacyrequirement in effect on the date hereof, reserve requirements or similar requirements as the result of any Regulatory Change; or
(b) any Regulatory Change which shall subject such Bank and/or its holding company to any tax (other than taxes on net income or compliance by receipts), levy, impost, charge, fee, duty, deduction, or withholding of any Lender with kind whatsoever or change the taxation of any request Loan made or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender and thereby reducing the rate of return on such Lender's capital as a consequence LIBO Rate Loan and the interest thereon (other than any change which affects, and to the extent that it affects, the taxation of its obligations hereundernet income or receipts). In any such event, then each Bank shall promptly notify the Borrower shall from time to time upon demand by such Lender (with a copy of such demand notice to the Agent) pay thereof stating the reasons therefor and the additional amount required fully to Agent, compensate the Bank and/or its holding company for the account such increased cost or reduced amount. Such additional amounts shall be payable on demand after receipt of such Lender, additional amounts sufficient to compensate such Lender for such reductionnotice. A certificate statement as to the any such increased cost or reduced amount of that reduction and showing the basis of the computation thereof submitted by such Lender to Borrower and to Agent shall, absent manifest error, be final, conclusive and binding for all purposes.
(b) If, due to either (i) the introduction of or any change therein (including calculations thereof in any law or regulation (or any change in the interpretation thereofreasonable detail) or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in submitted by the cost to any Lender of agreeing to make or making, funding, or maintaining any Loan, then Borrower shall from time to time, upon demand by such Lender Bank (with a copy of such demand to Agent), pay to Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as notice to the amount of such increased cost, submitted Agent) to the Borrower and to Agent by such Lendershall, shall in the absence of demonstrable error, be conclusive and binding on the Borrower. In the event that the Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware of any circumstances referred is required to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers pay an additional amount pursuant to this SECTION 1.16.
(c) Notwithstanding anything Section ------- 4.4 to any Bank and/or its holding company, then the contrary contained herein, if Borrower shall have the introduction of or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central --- right to seek a substitute bank or other Governmental Authority shall assert that it is unlawful, for any Lender banks to agree to make or to make or to continue to fund or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain replace such LIBOR Advance at another branch or office Bank under this Agreement in accordance with the provisions of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or the income obtained therefrom, on notice thereof and demand therefor by such Lender to Borrower through Agent, (i) the obligation of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Advances shall terminate and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR Advances owing by Borrower to such Lender, together with interest accrued thereon, UNLESS Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Option.Section 10.11(b). ---------------
Appears in 1 contract
Samples: Senior Revolving Loan Agreement (Consol Energy Inc)
Capital Adequacy; Increased Costs. (a) If any If, after the date of this Agreement, Lender shall have determined in good faith that the adoption after the date hereof of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order Regulatory Change regarding capital adequacy, reserve requirements or similar requirements any change therein, or any change in the interpretation or administration thereof by any governmental or regulatory authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender with any request or directive regarding capital adequacy, reserve requirements or similar requirements adequacy (whether or not having the force of law) from of any such authority, central bank or other Governmental Authority increases comparable agency, has or would will have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender and thereby reducing the rate of return on such Lender's ’s capital as a consequence in respect of its obligations hereunderunder this Agreement to a level below that which Lender could have achieved but for such adoption, change or compliance (taking into consideration Lender’s policies with respect to capital adequacy), then Borrower shall from time to time upon demand by such Lender (with a copy of such demand to Agent) the extent not already reflected in the Prime Rate, Borrower shall pay to Agent, for the account of Lender after demand such Lender, additional amount or amounts sufficient to as will compensate such Lender for such reduction. A certificate as to the amount of that reduction and showing the basis of the computation thereof submitted by such Lender to Borrower and to Agent shall, absent manifest error, be final, conclusive and binding for all purposes.
(b) IfIf there shall occur any Regulatory Change, due to either which shall have the effect of imposing on Lender (ior Lender’s holding company) the introduction any increase or expansion of or any change in new tax (excluding taxes on its overall income and franchise taxes), charge, fee, assessment or deduction of any law kind whatsoever, or regulation (reserve, special deposits or any change in similar requirements against credit extended by, assets of, or deposits with or for the interpretation thereof) or (ii) the compliance with any guideline or request from any central bank account of Lender or other Governmental Authority (whether or not having conditions affecting the force extensions of law), there shall be any increase in the cost to any Lender of agreeing to make or making, funding, or maintaining any Loancredit under this Agreement, then Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to Agent), pay to Agent for the account of Lender such additional amount as Lender additional amounts sufficient deems necessary to compensate such Lender for such any increased cost. A certificate as cost to Lender attributable to the amount extension(s) of credit under this Agreement and/or for any reduction in the rate of return on Lender’s capital and/or Lender’s revenue attributable to such increased cost, submitted to Borrower and to Agent by such Lender, shall be conclusive and binding on Borrower for all purposes, absent manifest error. Each Lender agrees that, as promptly as practicable after it becomes aware extension(s) of any circumstances referred to above which would result in any such increased cost, the affected Lender shall, to the extent not inconsistent with such Lender's internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by Borrowers pursuant to this SECTION 1.16credit.
(c) Notwithstanding anything Within 30 days after Borrower’s receipt of the certificate referred to in the next sentence, Borrower shall pay to Lender such additional amount or amounts as will compensate Lender for such reduced rate of return or increased cost; provided that, that in determining such amount or amounts, Lender may use any reasonable averaging and attribution methods. If Lender becomes entitled to claim any additional amounts pursuant to this Sections 2.09, it shall submit to Borrower a certificate certifying (a) that one of the events described in this Section 2.09 has occurred and describing in reasonable detail the nature of such event, (b) as to the contrary contained hereinreduced rate of return or increased cost resulting from such event, if (c) as to the introduction good faith basis therefor, and (d) as to the additional amount demanded by Lender, in reasonable detail the calculations used by Lender to arrive at the amount or amounts claimed to be due. Each determination by Lender of or any change in any law or regulation (or any change in amounts owing under this Section 2.09 shall be rebuttably presumptive evidence of the interpretation thereof) matters set forth therein. No demand for payment under this Section 2.09 shall be made unless Lender shall make it unlawful, or any central bank or comparable demands of other Governmental Authority shall assert that it is unlawful, for any Lender to agree to make or to make or to continue to fund or maintain any LIBOR Advance, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Advance at another branch or office of that Lender without, in that Lender's opinion, adversely affecting it or its Loans or the income obtained therefrom, on notice thereof and demand therefor by such Lender to Borrower through Agent, (i) the obligation of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Advances shall terminate and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR Advances owing by Borrower to such Lender, together with interest accrued thereon, UNLESS Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such Loans into a Loan bearing interest based on the Prime Rate Optionsimilarly situated borrowers.
Appears in 1 contract
